III13£§1
>wp*iw*r
H 1111
II H| ■HI
HI B SHh 1
1MU
wBBBSSm
ro»rofni)rawigf
HR
Hffl
n
B835
MBfli
lllif
B
BBjBJI
Digitized by the Internet Archive
in 2012 with funding from
State of Indiana through the Indiana State Library
http://archive.org/details/reportsofcasesatv61illi
REPORTS
OF
CASES AT LAW AND IN CHANCERY
ARGUED AND DETERMINED IN THE
SUPREME COURT OF ILLINOIS.
By NORMAN L. FREEMAN,
REPORTER.
VOLUME LXI.
Containing additional Cases submitted at the
September Term, 1871.
PRINTED FOR THE REPORTER.
SPRINGFIELD
1874.
Entered according to Act of Congress, in the year 1874, by
NORMAN L. FREEMAN,
In the office of the Librarian of Congress, at Washington.
JUSTICES OF THE SUPREME COURT
DURING THE TIME OF THESE REPORTS.
CHAELES B. LAWRENCE, Chief Justice.
PINKNEY H. WALKER, SIDNEY BREESE,
JOHN M. SCOTT, WILLIAM K. MCALLISTER,
ANTHONY THORNTON, BENJAMIN R. SHELDON,
Justices.
ATTORNEY GENERAL,
WASHINGTON BUSHNELL, Esq.
REPORTER,
NORMAN L. FREEMAN.
CLERK IN THE SOUTHERN GRAND DIVISION,
R. A. D. WILBANKS, Mt. Yernon.
CLERK IN THE CENTRAL GRAND DIVISION,
WILLIAM A. TURNEY, Springfield.
CLERK IN THE NORTHERN GRAND DIVISION,
WOODBURY M. TAYLOR, Ottawa.
TABLE OF OASES
REPORTED IN THIS VOLUME.
PAGE.
Adams ads. Valandschoot 368
Adams Express Co. v. Stettaners, 184
Aiken v. Hodge 436
Akers o. George 376
Anderson v. McCarty et al 64
Armstrong, Admx. etc. v. City of
Chicago 352
B
Badger v. Kerber 328
Barber ads. Phares 271
Batavia, Town of, ads. Force &
Co..... 99
Bates & Lippincott ads. Iroquois
Agricultural Society 490
Beardsley v. Hill 354
Bell v. Mallory 167
Bellows v. Wheeler 327
Bennett ads. Delano 83
v. McFadden et al 334
Bentley v. Wells 59
Bestor v. Moss et al 497
Bliss et al. v. Heasty et al 338
Bcehm et al. v. Bcehm 140
Borden et al. ads. Burr 389
Boutellier ads. Buckley 293
Bovrenet al. v. City of Chicago, 268
Bressler ads. Gibbons 110
et al. v. Kent 426
Bridenthal v. Davidson 460
PAGE.
Brown v. Devine 260
et al ads. Gilkerson et al. 486
Buck ads. Steele et al 343
Buckley v. Boutellier 293
Burnham v. Muller 453
Burr et al. v. Borden et al 389
Burrows v. Guthrie et al 70
. c
Carey v. Henderson et al 378
Chapman et al. v. City of Chi-
cago 449
Chicago, City of, ads. Arm-
strong, Admx. etc 352
ads. Bowen et al 268
ads. Chapman et al 449
v. Dermody , 431
ads. Harrison 459
v. Hislop 86
ads. Potwin 463
v. Rogers 188
ads. Tyler et al 459
ads. Union Building As-
sociation 439
ads. Van Inwagen 31
ads. Weckler 142
ads. Workman et al 463
Chicago, Burlington and Quincy
Railroad Co. v. Dunn 385
Chicago City Railway Co. ads.
McNeil 150
TI
TABLE OF CASES REPORTED.
PAGE.
Chicago and Northwestern Rail-
road Co. v. Ward 130
Clayton ads. Morgan 35
Cleaves v. Herbert 126
Cole ads. Town of Geneva. . . . 397
ads. Mansfield 191
Commercial Insurance Co. v.
Treasury Bank 482
Conroy ads. Toledo, Peoria and
Warsaw Railroad Co 162
Cook v. Norton et al 285
v. South Park Commis-
sioners 115
Cooper et al. v. Town of Dela-
van 96
Cramer et al. v. Willetts 481
Culver v. Fleming 498
D
Darst ads. Toledo, Peoria and
Warsaw Railroad Co 231
Davidson ads. Bridenthal 460
Day et al. ads. D}rer 336
Delano v. Bennett 83
Delavan, Town of, ads. Cooper
etal 96
Dermody ads. City of Chicago, 431
Develing et al. ads. Walton et al. 201
Deverill v. Salisbury 316
Devine ads. Brown 260
Dixon v. Dixon • 324
Dm per ads Talcott 56
Doan v. Sibbit 485
Dole et al ads. Hammers 307
Doolittle ads. Warren etal 171
Dunn ads. Chicago, Burlington
and Quinc}r Railroad Co 385
Dyer v. Day etal 336
E
Eckert ads. Foulk 318
Eddie v. Eddie 134
Edwards v. Evans 492
Evans ads. Edwards 492
PAGE.
106
Farden etal. ads. McLean. .
Farwell et al. v. Metcalf 372
Fleming ads. Culver 498
Flint v. Lewis 299
Fogg ads. Good 449
Fond du Lac, Town of, ads.
Mitchell, Adrnr 174
Force & Co. v. Town of Bata-
via ,. 99
Foulk v. Eckert 318
Frazer et al. ads. Smith etal. . . . 164
Frazier v. Gates 180
Fuller 0. Little 21
Gage ads. Greenebaum 46
Galesburg, City of, v. Higley. .. 287
Garrison et al. ads. Parker 250
Gates ads. Frazier 180
Gaylord ads. President and
Trustees of Lockport 276
Geneva, Town of, v. Cole 397
George ads. Akers 376
Gibbons v. Bressler 110
Gilkerson et al. v. Brown et al. . 486
Gill ads. Tucker 236
Glass ads. Peaslee 94
Goit et al. v. Joyce et al 489
Good v. Fogg 449
Graham e£ al. ads. Holderman.. 359
Greenebaum v. Gage 46
Gregory v. Healey et al 470
Griffin ads. Truitt 26
Guthrie et al. ads. Burrows 70
H
Hale, Town of, ads. Harding. . . 192
Hammers et al. v. Dole et al 307
Harding v. Town of Hale 192
Harrison v. City of Chicago.. . 459
Hasting ads. Reed 266
Hay, Admr. ads. Stevens et al.. 399
Haynes ads. O'Brien 494
TABLE OF CASES REPORTED.
vn
PAGE.
Hays v. Ottawa, Oswego and
Fox River Valley Railroad
Company 422
Healey et al. ads. Gregory 470
Heasty et al. ads. Bliss et al 338
Henderson et al. ads. Carey. . . . 378
Herbert ads. Cleaves 126
Higley ads. City of Galesburg. . 287
Hildebrand ads. City of Rock-
ford 155
Hill ads. Beardsley 354
Hiner ads. Tedrick et al 189
Hislop ads. City of Chicago 86
Hoag v. Switzer et al 294
Hobble ads. Toledo, Peoria and
Warsaw Railroad Co 388
Hodge ads. Aiken 436
Holden v. Hulbnrd et al 280
Holclerman v. Graham et al 359
Hubbard v. Hubbard et al. 228
Hulburd et al. ads. Holden 280
I
Illinois Land and Loan Co. v.
McCormick et al 322
Iroquois Agricultural Society v.
Bates & Lippincott 490
Joice et al. ads. Goit et al.
489
K
Keller v. Rossbach 342
Kent ads. Bressler et al 426
Kerber ads. Badger 328
Kilpatrick ads. St. Louis, Jack-
sonville and Chicago Railroad
Company 457
KolbensonaZ^.ads.Lawson etal. 405
Lawrence et al ads. Means. . . . 137
Lawson et al. v. Kolbenson et al. 405
Lewis ads. Flint 299
PAGE.
Liebbrandt v. Myron Lodge No.
One, etc 81
Little ads. Fuller 21
Lockport, President and Trus-
tees of, v. Gaylord 276
M
Mallory ads. Bell 167
Mansfield v. Cole 191
Marshall et al. v. Silliman et al. . 218
Mason et al. ads. Thompson 208
McCarty et al. ads. Anderson.. 64
McClellan et al. ads. Vickery.. 311
McCormick et al. ads. Illinois
Land and Loan Co 322
McFadden et al. ads. Bennett. . . 334
McKanna et al. v. Merry 177
McLean v. Farden et al 106
McNeil v. Chicago City Rail-
way Co 150
McWilliams et al. v. Morgan... 89
Means v. Lawrence et al 137
Merrick v. Peru Coal Co.. .-. . . . 472
Merry ads. McKanna el al 177
Metcalf ads. Farwell et al 372
Mitchell, Adrnr. v. Town of
Fond du Lac 174
Morgan v. Clayton 35
ads. McWilliams etal..., 89
Moss et al. ads. Bestor 497
Muhlke et al. ads. Uhlich 499
Muller ads. Burnham, 453
Myron Lodge No. One, etc., ads.
Liebbrandt 81
N
Northern Line Packet Co. v.
Shearer 263
Norton et al. ads. Cook 285
O'Brien v. Haynes 494
Ohlendorf et al. ads. Wetherill. .283
Oneida, City of, ads. Sullivan.. 242
Ottawa, Oswego and Fox River
Valley Railroad Co. ads. Hays 422
TABLE OF CASES REPORTED.
PAGE.
P
Palmer ads. The People 255
Parker v. Garrison et al 250
v. Parker 369
Peaslee v. Glass 94
People v. Palmer. 255
ads. Rainforth 365
ads. Wright 382
Peoria and Rock Island Railroad
Co. v. Warner 52
Pern Coal Co. ads. Merrick. . . . 472
Phares v. Barber 271
Potwin v. City of Chicago 463
R
Rainforth v. The People 365
Reed v. Hastings 266
Rockford, City of, v. Hilde-
brand 155
Rogers v. City of Chicago. ... . 188
Rossbach ads. Keller 342
s
Salisbury ads. Deverill 316
Shearer ads. Northern Line
Packet Co ." . 263
Sibbit ads. Doan 485
Silliman et cd. ads. Marshall et al. 218
Smith et al. v. Frazer el al 164
South Park Commissioners ads.
Cook 115
Steele et al. v. Buck 343
Stevens et al. v. Hay, Adm'r. . . . 399
Stettauers ads. Adams Express
Co 184
St. Louis, Jacksonville and Chi-
cago Railroad Co. v. Kilpat-
rick 457
Sullivan v. City of Oneida 242
Switzer et al. ads. Hoag 294
T
Talcott v. Draper 56
Tedrick el al. v. Hiner 189
Thompson v. Mason el al 208
PAGE.
Toledo, Peoria and Warsaw
Railway Co. v. Conroy 162
v. Darst 231
% Hobble 388
Treasury Bank ads. Commercial
Ins. Co 482
Truitt v. Griffin. 26
Tucker v. Gill 236
Tyler et al. v. City of Chicago. . 459
u
Uhlich v. Muhlke et al 499
Union Building Association v.
City of Chicago 439
V
Valandschoot v. Adams 368
Van Inwagen v. City of Chi-
cago 31
Yennum v. Vennum 331
Vickery v. McClellan et al 311
w
Walbridge, Admr., etc., et al. ads.
Warnen et al 173
Walton et al. v. Develing et al. . 201
Ward ads. Chicago and North-
western Railroad Co 130
Warner ads. Peoria and Rock
Island Railroad Co 52
Warren et al. v. Doolittle. ..... 171
v. Walbridge, Admr., etc.,
etal 173
Weckler v. City of Chicago . . . 142
Wells ads. Bentley 59
Wetherill v. Olilendorf^ al 283
Wheeler ads. Bellows 327
Willetts ads. Cramer et al 481
Workman et al. v. City of Chi-
cago 463
Wright v. The People 382
TABLE OF OASES
COMPRISING THE FORMER DECISIONS OP THIS COURT,
CITED, COMMENTED UPON, OK EXPLAINED,
IN THIS VOLUME
A
Adams v. Johnson, 15 111. 345 , 267
Adams Express Co. v. Haynes, 42 111. 90 186
Alton and Sangamon Railroad Co. v. Carpenter-, 14 111. 190 235
Altum ads. Easton, 1 Scam. 250 496
Am. Cent. Railway Co. v. Miles, 52 111. 174 480
Anderson ads. Bigelow, 31 111. 322 254
Austin v. Belleville and Illinoistown Railroad Co. 19 III 310 . * . * .54
B
Babcock ads. Howard, 21 111. 259 77
Backus ads. Baker et al. 22 111. 79 > 418
Bacon ads. McDonald, 3 Scam. 431 77
Bacon et al. v. Cobb et al. 45 111. 47 350
Baker et al. v. Backus, 32 111. 79 418
Baldwin v. Dunton, 40 111. 188 519
Ballance ads. Carroll, 26 111. 9 183
Barbour et al. v. White et al. 37 111. 165 128
Bassett ads. Umlauf, 38 111. 96. 192
Bay ads. City of Bloomiugton, 42 111. 503 161
Bedell ads. Sharp, 5 Gilm. 88 356
Beers ads, Illinois River Railroad Co. 27 111. 185 424
Belleville and Illinoistown Railroad Co. ads. Austin, 19 111. 310 54
Berry ads. Hawkins, 5 Grilm. 39 207
Bigelow v. Andrews, 31 111. 322 254
Biggs ads. Steele, 22 111. 643 68
TABLE OF CASES CITED.
PAGE.
Booniington, City of, v. Bay, 42 111. 503 161
Board of Supervisors, etc. ads. Palmer, 46 111. 447 207
Boyd v. Kocher, 31 111. 295 356
Brady v. Spurck, 27 111. 478 .*. 40
Bree v. Bree, 51 111. 367 362
Brimfield, Town of, ads. Wiley, 59 111. 306 105
Brooks v. Bruyn, 18 111. 539, aud 24111. 372 109
Brosseads. Snydacker, 51 111. 357 310
Brown v. Gaffuey, 28111. 150 306
v. The People, 19 111. 613 206
Brow iiing v. City of Springfield, 17 111. 143 161
Bruyn ads. Brooks, 18 111. 539, and 24 111. 372 109
Bull ads. Chicago and Milwaukee Railroad Co. 20 111. 218 120, 125
Butler ads. Longwith, 3Gilni.42 ■ 394
Butterfield v. Smith, 11 111. 485 40
c
Carpenter ads. Alton and Sangamon Railroad Co. 14 111. 190 235
Carroll v. Ballance, 26 111. 9 183
Carter ads. McAuley, 22 111. 53 331
Casey v. Casey, 14111. 112 519
Champaign, City of, v. Patterson, 50 111. 62 158
Chanute v. Martiu, 25 111. 63 29
Chicago, City of, ads. Creote, 56 111. 422 444
ads. Foss, 56 111. 354 269, 464
v. Joney, 60 111. 383 433
ads. Kelly, 48 111. 389 91
ads. Laflin et al. 48 111. 449 447
v. Larnede^. 34111. 203 445
■ ads. Rees, 38 111.322 200
ads. Rich, 59 111. 286 143
ads. Rue, 57 111. 435 143
ads. Union Building Association, 61 111. 439 464
v. Ward, 36 111. 9 447, 465
Chicago, Mayor of, ads. The People ex rel. 51 111. 30 224
Chicago and Milwaukee Railroad Co. v. Bull, 20 111. 218 120, 125
ads. Shute, 2G 111. 436 120
Chicago and Northwestern Railroad Co. v. Swett, 45 111. 198 132
Chicago aud Rock Island Railroad Co. v. Whipple, 22 111. 106 424
Chrisman v. Miller, 21 111. 227.. 67
Chnstieetal. v. Hale, 46 111. 117 336
Clarke v. Board of Supervisors of Hancock county, 27 111. 305. 103
Clearwater v. Kimler, 43 III. 272 523
Cobb et al. ads. Bacon et al. 45 111. 47 350
Cole v. Duncan, 58 Hi. 176 60
v. Van Riper, 44 111. 58 427, 43C
TABLE OF CASES CITED. xi
PAGE.
Constant v. Matteson, 22 111. 546 455
Qonway ads. Jameson, 5 Gilm. 227 294
Cook. v. Norton, 43 111. 391, and 48 111. 20 261
"Cook ads. Supervisors of Marshall county, 38 111. 44 104
Cornelia v. Ellis, 11 111. 584 452
Covill v. Phy, 26 111. 433 326
Cowgill v. Long, 15 111. 202 226
Creel v. Kirkham, 47 111.349 317
Creote v. City of Chicago, 56 111. 422 444
Crook v. The People, 16 111. 535 206
D
Davis v. Easley, 13 111. 192 109
Dennis®. McCagg, 32 111.429 519, 537
Dickson ads. McConnel, 43 111. 99... 254
Doughertys The People, 4 Scam. 179 1G8
Drainage Comrs. ads. Hessler, 53 111. 110 225
Dryclen ads. Martin, 1 Gilm. 187 29
Dunbar ads, O. and M. Railroad Co. 20111. 623 424
Duncan ads Cole, 58 111. 176. 60
Dunlap v. Gallatin county, 15 111. 7 398
Dunning v. Dunning, 37 111. 306 496
Dunton ads. Baldwin, 40 111. 188 519
Dupuy v. Gibson, 36 111. 198 309
Dyer v. Martin et al. 4. Scam. 146 306
E
Earnest. Reed, 19111. 594 455
Easley ads. Davis, 13 111. 192 100
Easton ©. Altum, 1 Scam. 250 496
Edwards ads. Evans, 26 111. 279 493
Ehrenfels ads. Martin, 24 111. 187 89
Ellis ad*. Cornelia, 11 111. 584 452
Emerson ads. Lowe, 48 111. 161 182
Endero. Scott, 11 111. 35 267
Engart ads. McArtee, 13 111. 242 518
Evans v. Edwards, 26 111. 279 493
ads. The People, 18 111. 361 ." 326
F
Faggott ads. Fournier, 3 Scam. 347 356
Firman ads. Hubbard, 29 111. 90 229
Fitzgerald ads. O'Reily, 40 111. 311 89
Foss v. City of Chicago, 56 111. 354 269, 464
Fournier v. Faggot, 3 Scam. 347 356
xn TABLE OF CASES CITED.
PAGE.
Frank v. Miner, 50111. 444 310
Frick ads. Town of Keithsburg, 34 111. 420 225
G
Gaff'ney ads. Brown, 28111.150 306
Gallatin County ads. Dunlap, 15 111. 7 398
- ads. Ryan, 14111. 78 398
Gatewood ads. Towell, 2 Scam. 22 267
Gibson ads Dupuy, 36 111. 198 309
Graft' ads. Young and wife, 28 111. 20 430
Greenway et al. v. Thomas, 14 111. 271 254
H
Hale ads. Christie, 46 111. 117 336
Hancock County, Board of Supervisors of, ads. Clark, 27 111. 305 103
Happy et al v. Morton et al. 33 111. 407 420
Harris ads. Heusel et al. 42 111. 425 523
Harward v. St. Clair and Monroe Levee and Drainage Co. 51 111. 130. . 224
Hawkins v. Berry, 5 Gilm. 39 267
Haynes ads. Adams Express Co. 42 111. 90 186
Henrickson v. Reinback, 33 111. 302 79
Hessler*). Drainage Comrs. 53 111. 110 225
Heusel et al. v. Harris, 42 111. 425 523
Hinckley ads. Shortall, 31111.219 56
Hollowbush v. McConnel, 12 111. 204 286
Howard v. Babcock, 21 111. 259 77
Hubbard v. Firman, 29 111. 90 229
Hard ads. Moulton et ux. 20 111. 137 427
I
Illinois Central Railroad Co. v. Morrison, 19111. 136 187
Illinois River Railroad Co. v. Beers, 27 111. 185 424
Irving ads. Ross, 14 111. 182 446
J
Jacksonville, President and Trustees of the Town of, ads. Warren, 15
111.236 91
Jacobs v. Rice, 33 111. 371 - 57
ads. Mitchell, 17 111. 225 469
Jameson v. Conway, 5 Gilm. 227 294
Jennings v. McConnel, 17 111. 150 519
Johnson ads. Adams, 15 111. 345 267
v. Joliet and Chicago Railroad Co. 23 111. 203 120
Joliet and Chicago Railroad Co. ads. Johnson, 23 111. 203 ; . . . 120
. TABLE OF CASES CITED. xin
PAGE.
Jolict, City of, v. Verley, 35 111. 59 158
Jouey ads. City of Chicago, 60 111. 383 433
K
Keithsburg, Town of, v. Frick, 34 111.420 225
Kelleen ads. Wear, 38 HI. 259 , 357
Kelly v. City of Chicago, 48 111. 389 .. 91
Kimler ads. Clearwater, 43 111. 272 523
Kirkham ads. Creel, 47 111. 349 317
Kocher ads. Boyd, 31 111. 295 356
L
Laflin et al. v. City of Chicago, 48 111. 449. 447
~L&vned et al. ads. City of Chicago, 34 111! 203 ..,...• 445
Lindsey v. Lindsey, 50111. 79 . 521
Littler Smith, 4 Scam. 400 356
Long ads. Cowgill, 15 111. 202 226
Longwithfl. Butler, 3 Gilm. 42 394
Lovingston v. Wider, 53 111. 302...,. 225
Low v. Kolte, 15 111. 368 471
Lowe v. Emerson, 48 111. 161 , 182.
M
Marcy v. Taylor, 19 111. 634 , 200
Marshal. Newland, 19 111. 376 118
Marshall County, Supervisors of, v. Cook, 38 111. 44 104
Martin ads. Chanute, 25 111.63 29<
v. Dryden, 1 Gdlm. 187 29-
v. Ehrenfels, 24 111. 187 89
Martin et al. ads. Dyer, 4 Scam. 146 , 306
Mason ads. Whittemore, 14111. 392 77
ads. Young, 3 Gilm. 55. 357
Mattesonads. Constant, 22111. 546 455
Mathews ads. Warner, 18 111. 83 127
McArteea. Engart, 13 111. 242 51«
McAuley v. Carter, 22 111. 53 331
McCagg ads. Dennis, 32 111. 429 51-9
McConnela. Dickson, 43 111. 99 .254
ads. Hollowbush, 12 111. 204 286
ads. Jennings, 17 111. 150 519, 537
McDonald v. Bacon, 3 Scam. 431 77,
McNerney v. Newberry, 37 111. 91 486.
Miles ads. Am. Cent. Kailway Co. 52111. 174 480'
Miller ads. Chrisman, 21 111. 227 67
Mills v. Weeks, 21 111. 561 ^ 331
xiv TABLE OF CASES CITED.
PAGE.
Milnor v. Willard, 34 111. 38 68
Mineral. Frank, 50 111.444 310
Mitchell o. Jacobs 17 111. 225 496
ads. St. Louis, Jacksonville and Chicago Railroad Co., 47 111. 165 54
Moore ads. Scott, 3 Scam. 306 306
Morrison ads. Illinois Central Railroad Co., 19 111. 136 187
Morton et al. ads. Happy et al. 33 111. 407 420
Moulton e* aa;. v. Hurd, 20 111. 137 427
.Murray ©. Schlosser, 44 111. 14 * 68
N
Newberry ads. McNerney, 37 111. 91 486
Newhal ads. Western Transportation Co. 24 111. 466 186
Newland v. Marsh, 19 111. 376 118
Nolte ads. Low, 15 111. 368 471
Norton ads. Cook, 43 111. 391 and 48 111. 20. 261
o
Ohio and Mississippi Railroad Co. v. Dunbar, 20 111. 623 424
O'Neal v. The Wabash Ave. Baptist Church, 48 111. 349 68
O'Reiley ©. Fitzgerald. 40 111. 311 89
P
Palmer v. Board of Supervisors, etc. 46 111. 447 207
Patterson ads. City of Champaign, 50 111. 62 158
Peoples v. Peoples, 19 111. 269 371
People ads. Brown, 19 111. 613 206
-ads. Crook, 16 111.535 206
ads. Dougherty, 4 Scam. 179 168
v. Evans, 18 111.361 ! 326
ads. Stuart, 3 Scam. 395 206
v. Williams, 51 111. 63 120
ads. Winkleman, 50 111.449 206
ads. Winehip, 51 111. 296 206
People ex rel. v. Mayor of Chicago, 51 111. 30 224
People ex rel. R. I. and Alton Railroad Co. ads. Supervisors of Schuy-
ler County, 25 111. 182 102
Pettyjohn ads. Taylor, 24 111. 312 54
Phy ads. Covill, 26 111. 433 326
Prettyman v. Tazewell County, 19 111. 406 221
Prior ads. Ross, 14 111. 171 118
v. White, 12 111 261 439
TABLE OF CASES CITED. XV
£AGE.
Q
Quigley ads. Riley, 50 111. 304 306
R
Randall ads. Stacey, 17 111. 468 49
Rankin ®. Simonds, 27 111. 352 30
Reed®. Eames, 19 111.594 455
Reed et al. ads. Wheeler, 36 111. 81 267
Rees®. City of Chicago, 38 111. 322 200
Reinback ads. Henrickson, 33 111. 302 79
Rice ads. Jacobs, 33 111. 371 57
Rich®. City of Chicago, 59 111. 286 143
Riley®. Quigley, 50 111. 304 306
Rock Island and Alton Railroad Co., The People ex rel. ads. Super-
visors of Schuyler County, 25 111. 182 102
Ross ®. Irving, 14 111. 182 446
v®. Prior, 14 111. 171 118
Rue ®. City of Chicago, 57 111. 435 143
Ryan v. Gallatin County, 14 111. 78 398
s
Saunders ads. Schwartz, 46 111. 22 347
Schlosser ads. Murray, 44 111. 14 68
Schuyler County, Supervisors of, ®. The People ex rel. R. I. and Alton
Railroad Co. 25 111. 182 102
Schwartz®. Saunders, 46111. 22. » 347
Scott ads. Ender, 11 111. 35 267
®. Moore, 3 Scam. 306 306
Sharp®. Bedell, 5 Gilm. 88 , 356
Shortall®. Hinckley, 31 111. 219.. 56
Shute ®. Chi. and Mil. Railroad Co. 26 111. 436 120
Simonds ads. Rankin, 27111. 352 30
Smitharfs. Butterfield, 11 111. 485 40
ads. Little, 4 Scam. 400 356
®. Whittaker, 11 111. 417 357
Snell ads. Trustees of Schools, 19 111. 157 392
Snydacker ®. Brosse, 51 111. 357 ,, 310
Spaulding ads. Waterman, 51 111. 430 393
Springfield, City of, ads. Browning, 17 111. 143 161
Spurck ads. Brady, 27 111. 478 40
Stacey ®. Randall, 17 111. 468 49
Steele ®. Biggs, 22 111. 643 68
St. Clair and Monroe Levee and Drainage Co. ads. Harward, 51 111. 130, 224
xvi TABLE OF CASES CITED.
PAGE.
St. Louis, Jacksonville and Chicago Kailroad Co. v. Mitchell, 47 111. 165, 54
Stuart v. The People, 3 Scam/395 206
Swett ads. Chicago and Northwestern Railroad Co. 45 111. 198 132
T
Talbot ads. Fuller, 23 111. 357 , 387
Taylor ads. Marcy, 19 111. 634 200
< v. Pettijohn, 24 111. 312 54
Tazewell County ads. Prettyman 19 111. 406 221
Thomas ads. Greenway et al. 14 111, 271 , 254
Towell v. Gatewood, 2 Scam. 22 , 267
Trustees of Schools v, Snell, 19111. 157 392
Tuller v. Talbot, 23 111. 357. 387
u
Umlauf v. Bassett, 38 111. 96 192
"Union Building Association v. City of Chicago, 61 111. 439 464
V
Van Riper ads. Cole, 44 111. 58 427, 430
Verley ads. City of Joliet, 35 111. 59 158
w
Wabash Avenue Baptist Church ads. O'Neal, 48 111. 349 68
Ward ads. City of Chicago, 36 111. 9 447, 465
Warner v. Matthews, 18 111. 83 127
Warren v. The President, etc. of The Town of Jacksonville, 15 111. 236, 91
Waterman v. Spaulding, 51 111. 430 393
Wear v. Kellean, 38 111. 259 357
Weeks ads. Mills, 21 111. 561 331
Western Transportation Co. v. Newhal, 24 111. 466 , 186
Wheeler v. Reed et al. 36 111. 81 267
Whipple ads. Chicago and Rock Island Railroad Co. 22 111. 106 424
Whitakerads. Smith, 11 111.417 357
White ads. Prior, 12 111. 261 439
White et al. ads. Barbour et al. 37 111. 165 128
Whittemore ». Mason, 14 111. 392 77
Wider ads. Lovingston, 53 111. 302 225
Wightman v. Wightman, 45 111. 167 206
Wiley v. Town of Brimfield, 59 111. 306 105
Willardarfs. Milner, 34 111. 38 68
TABLE OF CASES CITED.
PAGE.
Williams ads. The People, 51 111. 63 120
Winkelman v. The People, 50 111. 449 206
Winshipv. The People, 51 111. 296 206
Y
Young v. Mason, .3 Gilm. 55 357
Young and wife v. Graff, 28 111. 20 430
2— 61st III.
EZEKIEL H. PALMER.
RESTORATION TO THE BAR.
The name of Ezekiel H. Palmer having, at the September term, 1871,
been directed by the court to be stricken from the roll of attorneys of this
court (see this volume, page 225), at the January term, 1873, on applica-
tion, supported by proofs, to authorize said Palmer to subscribe such roll
of attorneys, pursuant to the 6th section of the Statute in such case made
and provided, it was ordered by the court, after full consideration of the
matter, that said Palmer be authorized to sign or subscribe said roll, and
be restored to his right to practice law in all the courts of this State.
CASES
IN THE
SUPREME COURT OF ILLINOIS.
NORTHERN GRAND DIVISION.
SEPTEMBER TERM, 1871.
Henry Fuller
V.
John Z. Little.
1. Evidence — its admission. Where it is claimed that a person em-
ployed a stage manager for the season at $60 per month, it was not error
to admit evidence of the acts done by the agent in the fall in reference to
the business of the next year, when the acts were done with the knowl-
edge or approval of the employer, as tending to show that the agent was
employed for the season.
2. Instructions — evidence. Where such evidence is admitted, and the
court instructed the jury that it should not prejudice defendant unless the
acts were authorized or ratified by him : Held; that the evidence could
have worked defendant no harm.
22 Fuller 0. Little. [Sept. T.,
Opinion of the Court.
3. An instruction which informed the jury that if defendant employed
plaintiff for a specified time, and defendant committed a breach of the con-
tract whereby plaintiff was prevented from serving for the period he was
employed and he thereby suffered loss, he was entitled to recover the sal-
ary which defendant agreed to pay for the time for which he was hired,
less the amount of net earnings the evidence showed he had made during
the time for which he was hired: Held, in view of the evidence before the
jury, that this instruction could not have misled the jury and worked no
wrong to defendant.
4. Damages — reduction thereof. "Where there is such an engagement,
and the employer violates the agreement and prevents its fulfillment, he is
liable for the wages during the time, and it is for him to prove that plain-
tiff has been actually employed in other profitable business, or that such
employment had been offered to and rejected by him, to entitle him to a
reduction of damages. And where a defendant fails to prove that the
plaintiff was or could have been so employed, and the evidence is vague
and indefinite as to plaintiff's earnings during the time so that the jury
could make no estimate of the amount, the judgment will not be reversed
because no deduction was allowed.
5. Xewlt discovered evidence. Where it appears, from the affida-
vits filed in support of a motion for a new trial because of newly discovered
evidence, that it is only cumulative and indecisive, a new trial should not
be granted.
6. Practice — new points for a re-argument Where a case has been
argued and decided on the points presented, a rehearing will not be
granted on new questions raised for the first time in the petition, unless it
be to prevent manifest injustice.
Appeal from the Circuit Court of Cook county; the Hon.
Henry Booth, Judge, presiding.
Messrs. Grant & Swift, for the appellant.
Messrs. Meriam & Alexander, for the appellee.
Mr. Chief Justice Lawrence delivered the opinion of
the Court :
This was an action brought by Little against Fuller to re-
cover damages for breach of a contract alleged to have been
made between the parties by which the plaintiff agreed to pay
the defendant a year's salary at the rate of 860 per week in
consideration of the defendant's services as stage manager
1871.] Fuller v. Little. 23
Opinion of the Court.
at a place of amusement called Wood's Museum, in the city
of Chicago. The defendant sold the museum on the 1st of
August, 1869, and the question in this case was, whether he
had previously engaged the plaintiff' for the season, com-
mencing on the 1st of August and terminating on the 1st of
the next July. The jury found for the plaintiff", assessing his
damages at $2800.
The first error assigned is, that the court admitted illegal
evidence. The plaintiff was acting as stage manager for the
defendant at the time of the sale, and the court permitted him
to show what steps he had taken to carry forward the business
during the next year. If these acts of the plaintiff* were done
under the direction.or with the knowledge or approval of the
defendant, they were very material in aiding the jury to pass
upon the question at issue. They related to the correspond-
ence of the plaintiff* and advertisements by him for the pur-
pose of forming a dramatic company for the next year, and if,
in all this, he was acting under the direction of the defendant,
the presumption would be reasonable that an engagement had
been made between them. The plaintiff testified positively to
his own engagement, and that he acted, in making his ar-
rangements for the coming season, under the express direc-
tions of the defendant. The court properly admitted the evi-
dence, and after the defendant had contradicted, on the stand,
the statements of the plaintiff, the court instructed the jury
that the former was not to be prejudiced by the acts of the
plaintiff in making engagements with authors or theatrical
persons unless the defendant had authorized or ratified his
acts. This instruction placed this evidence in its proper light
before the jury, and the appellant can not justly complain of
the ruling of the court.
It is next urged that the court erred in giving the second
instruction for the plaintiff, which was as follows :
"The jury are further instructed that if they believe, from
the evidence, that the defendant entered into a contract with
24 Fuller v. Little. [Sept. T.,
Opinion of the Court.
the plaintiff, as stated in the declaration, and committed a
wrongful breach of such contract with the plaintiff, whereby
the plaintiff has suffered loss, the rule of damages in this case,
and the amount the plaintiff is entitled to recover, is the
amount of salary which the defendant agreed to pay the plain-
tiff, if any such agreement or amount is shown by the evi-
dence, for the entire time for which he hired him, less the
amount of the net earnings, if any shown by the evidence,
made by the plaintiff during the time for which he was so
hired."
The objection taken to this instruction is in the use of the
phrase "net earnings." That this phrase in such connection
would be objectionable in some cases, is very clear. Whether
it worked the defendant any injury in this instance depends
upon its application to the evidence, and the mode in which
the jury must necessarily have understood it. The only testi-
mony as to the earnings of the defendant was the following
statement by himself:
"After the 1st of August I was around town for some time,
not knowing what to do scarcely. Finally I got a company
together ; some gentlemen put in some money, and we went
out traveling ; we were out some two weeks, when the parties
became dissatisfied who had the capital and left.
"I borrowed money to carry on the company ; when I got
back I was some hundreds of dollars in debt ; I was gone
about four months, I should judge ; all my jewelry was gone
— my watch and chain, and my wife's watch and chain and
jewelry.
"I was not able to get into a paying position that season. It
would be impossible for me to tell how much I earned through
the year; I earned nothing over and above my expenses; I
])iit my name on the books of various agencies and applied
for engagements ; accepted two engagements, such as they
Ave re." #
In reference to this evidence, so far as it relates to the pe-
cuniary success of the plaintiff while traveling in the country
1871.] Fuller v. Little. 25
Opinion of the Court.
as the head of a theatrical company, the use of the phrase "net
earnings" was not improper. The jury would necessarily
understand it as referring to the receipts above the expendi-
tures, the excess being to the plaintiff what his salary would
have been under the alleged engagement with the plaintiff.
It is true, the plaintiff's testimony implies that he earned,
through at least a part of the year, his personal expenses, and
if the evidence had shown what these expenses were, they
would have been a legitimate subject of deduction from the
salary alleged to have been lost. But the rule in actions of
this character is, that the burcjen of proof is on the defendant
to show the plaintiff has either been actually engaged in other
profitable employment or that such employment had been
offered to him and rejected. 2 Greenlf. Ev. sec. 261 a, and
cases cited in note. The evidence in this case furnished no
data upon which the jury could base an estimate of the
plaintiff's earnings. The statement that for a part of the year
he made his personal expenses, with no proof whatever as to
their amount, left the jury so utterly in the dark that any at-
tempt on their part to estimate such expenses would have been
a mere blind conjecture. It can only be said that, on this
point, the defendant wholly failed to make out his defense,
and he can not call upon us to reverse a judgment on the
ground that the instruction was inaccurate in confining deduc-
tions to net earnings when there was no evidence upon which
the jury could properly have made a deduction for earnings
of any sort.
It is urged that the verdict was against the evidence and
that a new trial should have been granted upon the affidavit
of newly discovered evidence. The evidence was voluminous
and contradictory, and presents a case in which the court can
not interfere with the verdict because unsustained by the tes-
timony. The newly discovered testimony, as set forth in the
affidavits, was simply cumulative and altogether indecisive.
Judgment affirmed.
26 Truitt v. Griffin. [Sept. T.,
Syllabus.
At the September term, 1 872, of the court, appellant filed a
petition for a rehearing, but it was overruled and the follow-
ing opinion was filed :
Per Curiam : A petition for rehearing has been presented
in this case, and it is asked chiefly on the ground that the suit
was commenced before the expiration of the year after making
the contract, and the damages were assessed for the entire
year. It is sufficient to say that this point was not made
upon the argument, and there was nothing said to direct the
attention of the court to the date when the suit was com-
menced. After a case has been fully argued and correctly
decided upon the questions made by counsel, we can not
grant a rehearing for the sake of allowing new questions to be
argued, unless it is necessary to do so in order to prevent great
injustice. In the present case, the question, now for the first
time raised, goes merely to the reduction of damages, and it
is evident, from the record, was not raised in the court below.
Rehearing refused.
Henry Truttt
George O. Griffin.
1. PLACITA — transcript of record. Where the placita appeared, not at
the beginning of the transcript, but in the latter part, but precedes the final
judgment in the case, it -was held that the law was complied with requir-
ing that the judgment must appear to have been rendered by a court reg-
ularly organized.
2. Garnishee summons — service. Where the return of the sheriff'
failed to show that he was unable to find property to satisfy a writ of at-
tachment, but was regularly served on a number of garnishees : Held, that
whilst it would have been more regular to have returned nulla bona, and
although the garnishees might have quashed the return, if not amended,
1871.] Truitt v. Griffin. 27
Opinion of the Court.
the court, nevertheless, acquired jurisdiction, and the irregularity is
waived by answering interrogatories. A levy on property, or service of a
garnishee, is necessary to confer jurisdiction in a suit by attachment.
3. Garnishee — answer as evidence. The sworn answer of a garnishee
must be taken as true until overcome by evidence.
4. Answeu — replication. A paper filed for a replication, but which
fails to traverse the truth of an answer, or any part of it, is not a replica-
tion, puts nothing in issue, and the auswer must be taken to be true.
5. Pleadings — certainty. Pleadings must be certain, and if not, from
omission of essential portions, the court can not supply such parts.
G. Trustee — statute of frauds. A party may convey property to a trus-
tee with power to defend it from litigation, and to raise funds to defend the
grantor against a criminal charge, or to procure bail, and it will be, if made
in good faith, valid against creditors and others not having prior liens. But
a further trust that it should also be held in trust for the support of the
grantor and his family, is within the statute of frauds, and is void to that
extent; and where the trustee had incurred liabilities for the defense of the
grantor equal to the fund in his hands, he would be entitled to hold it as
against all but persons having prior liens.
Appeal from the Circuit Court of Peoria county ; the Hon.
Sabin D. Puterbaugh, Judge, presiding.
Messrs. O'Brien & Harmon, and Mr. H. W. Wells, for
the appellant.
Messrs. McCulloch & Rice, for the appellee.
Mr. Justice Walker delivered the opinion of the Court :
This was an action of debt, brought by appellee, in the
Peoria circuit court, against Cincinnatus Bradley, in which a
writ of attachment was sued out and delivered to the sheriff.
The writ was returned with this indorsement by the sheriff:
"I have served this writ on the within named Henry Truitt,
John W. Fuller and Truitt, Mathews & Co., bank of Chilli-
cothe, as garnishees, this 8th day of June, 1870." Bradley
filed a plea of nul tiel record.
Interrogatories were propounded to the garnishees, and ap-
pellant answered denying that he is liable as garnishee, but
28 Truitt v. Griffin. [Sept. T.,
Opinion of the Court.
admitted that he held a large amount of United States bonds
in trust for Bradley and family; that Bradley had previously
conveyed to him real estate in Peoria county in trust to defend
certain suits, to defray the expenses of defending Bradley on
an indictment for shooting one Evans, in the courts of the State
of Indiana, and to support Bradley and family; that he had
sold the property and converted it into government bonds ; that
the prosecution was still pending, and that respondent was
liable to pay the costs of defending Bradley to an amount equal
to the fund in his hands.
Appellee filed what is called a replication to appellant's
answer, and it is this:
"And now comes the said plaintiff by D. McCulloch, his
attorney, and for replication to the answer of Henry Truitt,
says the matters and things therein contained, are wholly ex-
cept in so far as the said respondent charges himself with the
proceeds of the lands of the said defendant Bradley, and the
said plaintiff sets up and relies upon the statute of frauds and
perjuries now in force in the State of Illinois, as a complete
answer to the allegation of trusts and equitable interests set
up in said answer."
A trial was had by the court, by consent, and the court found
for appellee, and rendered a judgment against appellant for-
§648.89 ; and that branch of the case is brought to this court,
and various errors are assigned on the record. No exceptions
are pointed out in argument against the judgment rendered
against Bradley, and it must be affirmed.
It is first urged that the record shows no placita. Whilst
the transcript in this case, either from want of skill or sheer
negligence, is bunglingly prepared by the- clerk, we do find a
convening order on the 38th page of the record. This pre-
cedes the judgment against appellant, and as it shows a full
organization of the court, it must be held good.
It is next said, the service is not sufficient to give the court
jurisdiction of the garnishees. It is insisted that the sheriff,
for aught that appears, might have found property upon which
1871.] Truitt v. Griffin. 29
Opinion of the Court.
to levy sufficient to have satisfied the debt; and that, under
section 12, chap. 9, R. S., he was not authorized to summons
garnishees, unless he was unable to find property of that value.
The language of the statute is, "When the sheriff shall be un-
able to find property of any defendant in attachment sufficient
to satisfy any attachment issued under the provisions of this
chapter, he is hereby required to summons all persons within his
county whom the creditor shall designate as having any prop-
erty, effects or choses in action in their possession or power
belonging to the defendant," etc. This section contemplates
that the sheriff shall first seize property, if it can be found,
and he is so commanded by the writ ; and it is true that it
would be more regular for the sheriff to return that he had
been unable to find property ; and failing to do so, the garni-
shee might, no doubt, quash the return on motion for want of
such an indorsement, if the sheriff should not amend on leave
granted. But it is not a jurisdictional question. If the gar-
nishee fails to move to quash the return, and submits to the
jurisdiction of the court, he must be considered as waiving the
objection. The case of Chanute v. Martin, 25 111. 63, was
under the 38th section of the statute regulating judgments and
executions, and is not an authority for holding that the court
fails to obtain jurisdiction for the want of such a return.
The case of Martin v. Dryden, 1 Gilm. 187, is referred to as
an authority in favor of the objection urged by appellant. We
fail to perceive that it supports the position. It is there said
that the court fails to acquire jurisdiction unless there is a levy
on property, or service on a garnishee ; that mere publication
of notice does not confer it. It is further said that if the
property should be replevied, and on a trial of the right of
property, it should be found to belong to the claimant, the
court would not have power to proceed to judgment unless
there is service of garnishee process; and if the property was
found not to be the defendant's, and the person served as a
garnishee was found not to be indebted to, or had no property
or effects of, the defendant in attachment, the court would not
30 Truitt t\ Griffin. [Sept. T.,
Opinion of the Court.
have power to proceed further in the case, unless the defend-
ant had appeared and pleaded to the action. So far from sup-
porting the position taken by appellant, that case, if it has any
bearing on this, is against it.
Appellant next insists that the answer, until overcome by
evidence, must be taken to be true, and in this case it fails to
show any grounds to charge appellant.
In the case of Rankin v. Simonds, 27 111. 352, it was held
that the answer, when not traversed, must be taken to be true.
If, then, this answer was not traversed, it must be regarded as
true, and as proving all it alleges. Was it traversed ? On
being examined, it will be observed that the replication denies
no allegation in the answer. It may be there was, by inad-
vertence, an omission to insert a denial of the allegations of
the answer. We have no doubt that there, was an omission,
but we can not, upon mere conjecture, undertake to supply it.
For aught we know, the pleader may have intended to say
that the answer was wholly insufficient in law to constitute a
defense, or that it was wholly irresponsive to the interrogato-
ries propounded. All pleadings must be sufficient in and of
themselves, without leaving it to conjecture to say what was
intended. We are clearly of opinion that this pleading formed
no traverse to the answer, and it must be considered as true.
The answer standing as true, does it constitute a defense ?
We think it does. There can be no doubt that the owner of
property may convey it in trust for the purpose of raising
funds to defend it against pending litigation, and to raise funds
to defend himself against a criminal charge, or to procure bail
in such a case, provided it is made in good faith and before
other liens have attached. But the trust for the use of Brad-
ley and family can not be sustained, as that is prohibited by
the statute of frauds; and this trust deed to that extent was
voidable by Bradley's creditors. But appellant, in his answer,
states that he has incurred liability in Bradley's defense to the
full extent of the funds in his hands. The fact is, then, ad-
mitted that appellant has, under the deed of trust, rendered
1871.] Van Inwagen v. City of Chicago. «31
Syllabus.
himself liable for all the funds' in his hands. Until overcome,
or it be shown that the deed of trust was made to defraud
creditors, the answer must be held to constitute a defense, and
the court erred in rendering a judgment against the garnishee,
and that judgment is reversed and the cause remanded.
Judgment reversed.
James Van Inwagen
The City of Chicago.
1. Insurance — of the taxation of foreign companies in Chicago. The
5th section of the act of February 13, 1863, entitled "An act to reduce the
charter of the city of Chicago and the several acts amendatory thereof into
one act, and to revise the same," which provides that insurance companies
not incorporated under the laws of this State, and doing business in said
city, shall pay into the city treasury two per cent of the premiums on all
insurance effected in said city, is repealed \>y section 30 of the act of March
10, 1869, entitled "An act to incorporate and to govern fire, marine and
inland navigation insurance companies."
2. And the repealing act took from the city the right to sue for such per
cent due on premiums by virtue of the former act, prior to and at the time
of the repealing statute, as the repealing act contained no clause saving
such right, and the same was not a vested right.
3. When a statute gives a right in its nature not vested but remaining
executory, if it does not become executed before a repeal of the law giving
the right, it falls with the law and it can not thereafter be enforced.
Appeal from the Superior Court of Chicago ; the Hon.
William A. Portek, Judge, presiding.
Messrs. Higgins, Swett & Quigg, for the appellant.
Mr. M. F. Tuley, for the appellee.
32 Van Inwagen v. City of Chicago. [Sept. T.,
Opinion of the Court.
Mr. Justice Breese. delivered the opinion of the Court:
This was an action of debt, brought to the Superior Court
of Chicago, by the city of Chicago, against James Van Inwa-
gen, to recover of him two per centum on the premiums paid
to him as agent of the Astor Insurance Company of New
York.
The plea was nil debit. The issue was tried by the court,
who found for the plaintiff the amount claimed, namely : two
hundred and thirty-seven dollars and eight cents, and rendered
judgment accordingly, to reverse which defendant appeals and
assigns the general errors.
The amount recovered was for the two per cent on premi-
ums received from the first day of January, 1868, to the first
day of January, 1869. The action was brought to the March
term, 1870, under the act entitled " An act to reduce the char-
ter of the city of Chicago and the several acts amendatory
thereof into one act, and to revise the same," approved Feb-
ruary 13, 1863.
Section 5 of that act provides as follows: "All corpora-
tions, companies or associations not incorporated under the laws
of this State, engaged in said city in effecting fire, marine or life
insurance, shall pay to the city treasurer the sum of two dol-
lars upon the hundred dollars, and at that rate upon the
amount of all premiums which, during the half year ending
on the first day of July and January, shall have been received
or have agreed to have been paid for any insurance effected or
agreed to be effected in said city by or with such corporations,
companies or associations respectively."
The defense was, that this section was repealed by section
30 of " An act to incorporate and to govern fire, marine and
inland navigation insurance companies," approved March 10,
1860. Section 30 is as follows: "Every agent of any insu-
rance company incorporated by the authority of any other
State or government, shall return to the proper officer of the
1871.] Van Inwagen v. City of Chicago. 33
Opinion of the Court..
county, town or municipality in which the agency is estab-
lished, in the month of May annually, the amount of the net
- receipts of such agency, which shall be entered on the tax
lists of the county, town and municipality, and subject to the
same rate of taxation for all purposes, State, county, town and
municipal, that other personal property is subject to at the
place where located — said tax to be in lieu of all town and
municipal licenses; and all laws and parts of laws inconsist-
ent herewith are hereby repealed: Provided, that the provis-
ions of this section shall not be construed to prohibit cities
having an organized fire department from levying a tax or
license fee not exceeding two per cent, in accordance with the
provisions of their respective charters, said gross receipts to
be applied exclusively to the fire department of such city."
Session Laws 1869, p. 209.
It is claimed by appellant that this section is inconsistent
with the fifth section of the act of 1863, above recited, in these
respects : 1. That the moneys to be collected1 under the act of
1869 are to be applied to a different purpose from the moneys
collected under the act of 1863. 2. The provision as to the re-
turns are different, the act of 1863 requiring them to be made
on the first of July and January of each year, while that of
1869 requires them to be made annually on the first of May.
3. That the act of 1863 requires a return of the gross pre-
miums, whilst, that of 1869 requires a return of net pre-
miums only.
As to the first respect, we can not see Avherein is the differ-
ence, as neither section appropriates the money to be collected.
In the other respects there are the differences pointed out, and
render the provisions of the act of 1869 inconsistent with
those on which the action was brought, and being so, the pro-
visions of that act are repealed by the terms of the thirtieth
section.
The question then arises, which has been discussed at great
length, what is the effect of the repeal on causes of action ex-
isting before and at the time of the repealing statute ?
3— 61st III.
34 Van Inwagen v. City of Chicago. [Sept. T.,
Opinion of the Court
We believe the rule is well settled that, as to inchoate
rights — rights not carried into judgment, and so not exe-
cuted, can not be, and are not, saved, in the absence of a
saving clause in the repealing statute. The doctrine is, that
inchoate rights, derived under a statute, are lost by its repeal,
unless saved by express words in the repealing statute, and
unless those rights have become so far perfected as to stand
independent of the statute : Butler v. Palmer, 1 Hill, 324; that
is to say, executed.
A strong case in point on this doctrine is found in Miller's
case, 1 Wm. Blackstone, 451. Under the insolvent debtor's
act, 1 George 3d, one Miller was compelled by a creditor, at
the sessions at Guildhall, to give up his effects, and he accord-
ingly signed and swore to his schedule, but from circumstances
arising, the court adjourned his discharge until the next ses-
sions. In the meantime the statute 2d George 3d passed,
which repealed the compelling clause. A motion was made in
the King's Bench for a mandamus to the justices now to pro-
ceed and grant Miller his discharge, the jurisdiction having
attached before the clause was repealed. But the court said,
nothing is more clear than that the jurisdiction is now gone,
and that we can not grant any such mandamus. Even offenses
committed against the clause while in force could not have
been now punished without a special clause to allow it, and
therefore a clause is inserted in the repealing statute for that
purpose.
The effect of a repealing statute is to obliterate the prior
law as completely from the records as if it had never passed,
and it must be considered as a law that never existed, except
for the purpose of those actions or suits which were com-
menced, prosecuted and concluded while it was an existing
law. Bay v. Goodwin, 4 Moore & Payne, 341 ; Dwarris on
Statutes, 676.
The clear result of all the authorities is, when a statute, as
in this case, gives a right in its nature not vested, but remain-
ing executory, if it does not become executed before a repeal
1871.] Morgan v. Clayton. 35
Syllabus.
of the law giving the right, it falls with the law, and it can
not thereafter be enforced.
It is unnecessary to argue the proposition, that this right to
sue for the percentage was not such a right as in legal par-
lance is termed vested.
It is said, by the attorney for the city, that an organized fire
department was, at the time of suit brought, in existence in
the city of Chicago, and when the premiums were paid. This
may be so, anc^ doubtless is so, but as the record furnishes no
evidence of the fact, we can not, judicially, take notice of it.
Should such proof be made, the case might be brought
within the saving of the proviso of section thirty.
The judgment, for the reasons given, is reversed, and the
cause remanded for a new trial.
Judgment reversed.
Frances Morgan
V.
John M. Clayton.
1. Trust — what constitutes. When property is sold by agreement of
several interested parties to one of their number, to be held in trust for
protection of their interests, their intention may be shown by parol or
memorandum in writing.
2. Same — to be fulfilled strictly. A trust must be executed within its
terms. An unauthorized sale by the trustee will be set aside at the instance
of any injured party.
3. Notice — purchase for value. A purchase at an unauthorized and
voidable sale must be bona fide, for a valuable consideration, without notice
of existing equities, or collusion, or it will be set aside.
4. Same — collusion — irregularity. Where the purchaser is of kin to
the wrongful seller; takes title without the usual preliminary negotiation
as to price and terms of sale; when payments are nominal and not provi-
ded for in the usual manner, and the vendor is left in control of the prop-
erty— there is strong presumption of collusion and fraud.
36 Morgan v. Clayton. [Sept. T.,
Opinion of the Court.
5. Quit-claim deed — how far effective. A quit-claim deed will as
effectually pass the title and covenants running with the land as a deed of
bargain and sale, if no words restrict its meaning.
6. Same. He who, accepting a quit-claim deed, knowing of a former
incumbrance, does not cancel that incumbrance on paying it off, but takes
an assignment of it to himself, furnishes the presumption that he considers
himself holding as a creditor rather than a bona fide purchaser, and keeps
the way open for a redemption by the original mortgagor.
7. Value of improvements under defective title. The holder
under a defective title, though with notice, ma}- be held a mortgagee in
possession, and be entitled to repayment of advances nfade in good faith
and expended in improvements.
Appeal from the Circuit Court of Cook county ; the Hon.
EPvASTUS S. Williams, Judge, presiding.
Messrs. Beckwith, Ayer & Kales, for the appellant.
Messrs. Dent & Black, for the appellee.
Mf. Justice Scott delivered the opinion of the Court :
The appellee having purchased of Horatio N. Hea'ld the
equity of redemption in the property in controversy, filed his
bill to redeem the lands from a mortgage executed to George
W. Lay, Sen., on the 1st day of December, 1856, to secure a
loan of §10,000 for a period of ten years, with semi-annual
interest at the rate of ten per centum per annum. For the
principal and the several interest installments secured by the
mortgage, notes had been taken, payable ill gold or silver,
and it was provided that, for any default, the principal should
be treated as due.
In 1858 the property was further incumbered by Heald
with a deed of trust containing a power of sale to Andrew
Aiken to secure certain indebtedness to Amos G. Throop. The
interest of Throop in that deed of trust had been assigned to
Gibbon M. Taylor as collateral security, and the deed itself
placed in the hands of his resident attorney, H. F. Mather,
who had charge of his interests. The indebtedness, however,
1871.] Morgan v. Clayton. 37
Opinion of the Court.
secured by the Aiken deed of trust, has been in some way
adjusted, and it is not now involved in this controversy.
It appears that Heald failed to pay the interest on the Lay
mortgage, falling due on the 1st day of December, 1859, and
never afterwards paid anything thereon ; and that, prior to
1861, he had made default in the payment of the indebted-
ness secured by the Aiken deed of trust.
George W. Lay, Sen., to whom the mortgage was executed,
resided in the State of New York, but the loan was effected
through the agency of his son, George W. Lay, Jr., then a res-
ident of Chicago.
In the spring of 1861, George W, Lay, Jr., still having
charge of his father's interest in the mortgage, proposed to
Heald and the parties interested at that time in the Aiken
deed of trust, to have the premises sold under the power con-
tained in that deed and bid off in his name, so that the prop-
erty which had hitherto been vacant and unoccupied could be
improved and made to produce an income. An arrangement,
thought to be profitable to all, was perfected, and accordingly
on the 10th day of May, 1861, the property was sold by Ai-
ken, the trustee named in the deed, by virtue of the authority
vested in him, and was bid off in the name of George W. Lay,
Jr., for the nominal sum of $20, subject, as stated in the deed
made by the. trustee, to the debt secured by the Lay mort-
gage.
In April, 1863, George W. Lay, Jr., by a quit-claim deed,
conveyed the property in controversy to the appellant, and it
is that title that he now seeks to interpose as a defense to the
relief asked for in the bill.
The circuit court decreed relief and caused an account to
be taken of the amount necessary to redeem the property,
with which both parties seem to be satisfied ; at least no ob-
jection is made in this court to the sum found to be due to the
appellant, which must be paid to him in case a redemption is
permitted.
38 Morgan r. Claytox. [Sept. T.,
Opinion of the Court.
The appellant makes two points on which he mainly relies
for a reversal of the decree :
First — That he was a bona fide purchaser, for value, without
notice, and as such, acquired the legal title to the property.
Second — That the alleged trust in George W. Lay, Jr., was
substantially executed according to its terms, and the appellee
and his grantor, after knowing of the sale and conveyance to
appellant, delayed for an unreasonable time to make objection
if they had any.
We will consider these objections in the reverse order from
that in which they are stated.
It is conceded that Lay, Jr., purchased the property at the
trustee's sale under some agreement made with and for the ben-
efit of those interested as mortgagor and mortgagees, but the
parties differ as to the exact terms of the trust and as to the
construction that shall be given to the contract under which
the property was bid off.
It is insisted by the appellant that the extent of Lay's un-
dertaking was, and that such was the agreement between him
and Heald, Throop and Taylor, that he would hold the land
until it had advanced sufficiently, together with the rents to
be derived therefrom, to pay the debt secured by the first
mortgage and also the further advances of money necessary to
erect the building on the premises, and that whenever the
property would bring an amount sufficient to liquidate these
demands he could properly sell in the due execution of the
trust, and the treaty with appellant, in substance, covered his
whole obligation and duty in the premises.
This was not all his duty, nor even a substantial compli-
ance with the terms of the trust reposed in him. We think
that the agreement between the parties was broader and more
comprehensive than that stated by the counsel. It seems to
us that the memoranda made by Freer and Mather, the attor-
neys who conducted the 'business, would furnish the most ac-
curate understanding of the contract under which Lay bid off
the property. If the memoranda made at the date of the
1871.] Morgan v. Clayton. 39
Opinion of the Court.
transaction shall be regarded as containing a true statement of
the agreement, there can be no doubt that he was to hold the
property not only to secure the debt due to his father, on the
mortgage, and the advances necessary to erect the buildings,
but also for the benefit of the holders of the Aiken deed of
trust, and Heald himself.
Great reliance is placed by counsel on the testimony of
Throop, as stating accurately and clearly the terms and the
extent of the trust.
We do not think that the evidence of Throop, when con-
strued together as a Avhole, is at all inconsistent with the tes-
timony of the witnesses Freer and Mather, aided by the mem-
oranda, or that he states the terms of the trust differently
from what they do. According to their evidence, Lay was to
be the trustee of all the parties, and so wre understand Throop
to state the agreement, in substance. There is, in fact, no con-
tradiction, and if there is any difference it is only that he does
not state the terms and conditions of the trust quite so broadly.
In this view of the evidence, Lay had not complied with
the terms of the trust when he conveyed the property to the
appellant. The facts in the case clearly rebut the theory that
any power of sale was vested in him, and that he could exer-
cise it at any time whenever he deemed the terms of the trust
fulfilled. The trust had not then been accomplished, and the
conveyance was, itself, a plain and palpable violation of his
obligations in regard to it so far as he was concerned.
It makes no difference that the indebtedness secured bv the
Aiken deed of trust has since been extinguished. He was
still the trustee for Heald, and he had no lawful right to con-
vey the estate without his consent. It was as much forHeald's
benefit as for the benefit of the mortgagees that the property
was placed in Lay's hands to be by him improved so as to
render it productive. He voluntarily assumed the obligations
of the trust, and it was his duty to have discharged them faith-
fully towards all concerned. In no aspect of the case does it
appear that the trust had been executed according to any fair
40 Morgan v. Clayton. [Sept. T.,
Opinion of the Court.
and just construction of its terms when the conveyance was
made to the appellant.
The most important question, therefore, that can arise in
the case is, whether the appellant was a bona fide purchaser
for value, without notice, and as such acquired the legal title
to the property.
It is no objection that the conveyance in this instance was
by quit-claim deed. A deed of that character will as effectu-
ally pass the title, and covenants running with the land, as a
deed of bargain and sale, if the deed itself contains no words
restricting its meaning. Butter field v. Smith, 11 111. 485 ; Bra-
dy v. Spurck, 27 111. 478.
We do not deem it necessary to consider the question ar-
gued by counsel, to what extent a purchaser in good faith,
who has only paid a part of the purchase money before notice
of prior equities, and who subsequently completes his pay-
ments, will be protected ; or whether Heald or his grantee, or
the holders of the indebtedness secured by the Aiken deed of
trust in this instance, could have had any interest in the fund
remaining due after notice, instead of the land itself. These
questions could only become material in case we should con-
strue the arrangement between Lay, Jr., and the appellant, as
an absolute bargain and sale, such as would invest appellant
with the equitable^title to the estate.
AVe do not think that the transaction will bear the construc-
tion sought to be given to it by the counsel for the appellant.
Under the most favorable view that can be taken, if the testi-
mony of the appellant shall be regarded as giving a true and
accurate statement of the contract between Lay and himself —
and there is very little in the record that militates against it
— the bargain would not amount to an absolute purchase of
the estate, nor would it be sufficient even to give him the
equitable title prior to the making of the deed in 1863.
It is difficult to realize that Lay, Jr., deliberately planned
to perpetrate a fraud upon the parties with whom he was deal-
ing while professing to be doing them a friendly act. If the
1871.] Morgan v. Clayton. 41
Opinion of the Court.
construction insisted upon is the true one, then we find him,'
at the very time that he was negotiating with the parties to
have the property sold to him for a nominal sum so that it
could be improved for their mutual benefit, bargaining with
the appellant to make an absolute sale of it to him. We pre-
fer to give a more innocent construction to the conduct of
Lav, and one more consistent with upright and fair dealing.
The evidence fully warrants us in doing so.
It appears that Lay approached the appellant on the sub-
ject, as he says, of buying the property, in the month of Feb-
ruary prior to the sale under the Aiken deed of trust, in May,
1861. The only thing that was said about the price at that
time was, that the appellant asked him what the property was
worth, to which Lay replied, about §250 per foot ; but the
appellant declined to purchase, mainly 9 as he says, for want of
means. Nothing more occurred between the parties until the
21st day of April, 1861, just as the appellant was leaving Chi-
cago for Cairo to enter the* military service of the United
States.
It will be remembered that Lay is a brother-in-law of the
appellant, having married his sister. The appellant was then
a young man about twenty-three years of age, and was about
to enter the military service. He says that a moment before
he was to start with his company, Lay urged him to accept
his proposition in regard to this piece of property, and agreed
to attend to the erection of a building for him. In answer to
a question as to what he said in regard to the proposal, he
replied, "Nothing more than to give him an installment ac-
cepting it, and I gave him an installment to commence build-
ing, and left." This is the substance of the contract between
Lay and the appellant, as given by himself. The testimony
of Lay was not taken by either party, although he was made
a party to the suit, and served in New York with a copy of
the bill under the provisions of our statute.
It will be observed that there was no price agreed upon
that the appellant should pay for the property, or any time or
42 Morgan v, Clayton. [Sept. T.,
Opinion of the Court.
terms of payment. The appellant says that he was in a great
hurry and but little passed between them. At that time he
gave Lay a draft on Loudon for £250, which amounted in our
currency to $1177.66, with which to commence the building.
It is not pretended that any portion of this installment was to
apply as a payment on the property itself.
The appellant remained in the army until July, 1862, but
in the meantime made sundry payments to Lay, which were
used by him in the erection of the building. The buildings
Avere completed under the direction of Lay, and by him placed
tinder rent. In the beginning he counseled with Heald and
Throop as to the character of the buildings and cost of the
same, that should be erected, and also in regard to procuring
suitable tenants after the completion of the buildings.
On the 14th day of April, 1863, Lay executed and delivered
to the appellant the quit-claim deed. At that date it is con-
ceded that the appellant had been notified of the existence of
the mortgage to Lay, Sen., and that it was* a lien upon the
j^remises, and the deed is made expressly subject to the pay-
ment, by the appellant, of the debt secured by that mortgage.
On the 16th day of the same month, the appellant says that
he had a general settlement with Lay and they closed up the
bargain to that date. Lay was then about to change his resi-
dence to New York, which he did do shortly afterwards.
At this settlement it was found that the appellant had paid
in money and rents received by Lay, Jr., the sum of $10,322.26.
Of that amount $6,658.63 was paid for the erection of the
buildings, and perhaps the general care of the property, and
the balance was applied, as he says, to the purchase of the
property. The appellant states the manner of making the
payments for the property and how it was done. He says that
at the settlement he had with Lay he found that he had a
mortgage on the property belonging to his father, of Batavia,
New York, for $10,000 ; that there had been some back inter-
est that had not been paid on the mortgage, which he took up
as part payment, and assumed the $10,000, with interest at
1871.] Morgan v. Clayton. 43
Opinion of the Court.
the rate often per centum per annum for the rest of the pay-
ments on the property, making the entire amount paid some-
thing over $20,000.
The appellant paid the interest notes as they severally be-
came due, and also paid the last note, or principal, of $10, 500,
before the same, in fact, became due. Instead of having the
notes cancelled, the appellant had them assigned to him, but
without recourse. When the last note was paid, the mort-
gage was regularly assigned to him by the heirs of George W.
Lay, Sen., all of which he now holds.
Thus it will be seen that the appellant paid nothing to Lay,
Jr., for the title which he claims to have purchased from him.
The payments were made exclusively for the expenditures in
the erection of the buildings and in discharge of the lien cre-
ated by the Lay mortgage, the evidences of which he caused
to be assigned to himself, and which he still has in his pos-
session.
Was this an actual sale and transfer of the property? If so,
it lacks the elements usually found in such transactions.
What was the agreed price, time and manner of payments?
These are matters about which parties, in making a sale, or-
dinarily contract. If it was a bona fide sale, and intended to
be such, what were the terms of the contract as originally
made ? It was certainly not that the appellant should ad-
vance the money with which to erect the buildings and to dis-
charge the indebtedness secured by the Lay mortgage, for lie
states explicitly that he did not know of the existence of that
mortgage at that time, nor for several years afterwards. It
Avas not at the rate of $250 per foot, for it is not pretended
that he paid for the property in that way.
It is said that the appellant did not have actual notice of
the existence of prior equities until in the year 1864, and that
previous to that time he had expended a large sum of money
in the erection of buildings on the property in the belief that
he had purchased the title.
44 Morgan v. Clayton. [Sept. T.,
Opinion of the Court.
We do not think that the evidence will bear this construc-
tion. At the date the appellant made the first payment in the
draft on London, Lay had not then obtained a title under the
trustee's sale. . The arrangement, however, had been made
that he should have it. It is immaterial whether Lay was
his agent to buy the property; it can not be gainsaid, on the
theory that the transaction was a purchase ; that he was his
agent during his absence in the army to erect the buildings.
Before anything was expended on the property he must be
chargeable with the notice of the facts within the knowledge
of his agent making the expenditures for him. It was the
duty of the agent to communicate to his principal the knowl-
edge that he had of the prior equities, and the law will pre-
sume that he did. Notice to the agent on the premises doing
the work must be regarded as notice to the principal who
employed him. If the appellant, himself, had been making
the improvements, the law would not permit the holders of
the equities to stand by and see him expend his money under
the belief that he would obtain the title under the deed. It
would have been their plain duty to have given him notice
of whatever rights they claimed. He was absent, and no per-
sonal notice could be given to him. It would have been idle
to have given notice to the agent who was having the work
done, for he was, himself, the trustee, and in possession of all
the facts.
The appellant, therefore, had constructive notice, at least, of
the prior equities of the appellees, grantor, and of the parties
holding the indebtedness secured by the Aiken deed of trust,
before he invested anything in improvements or paid any-
thing on what he terms the purchase money, that is, before he
took up any of the interest notes secured by' the Lay mort-
gage, and he can not be considered a bona fide purchaser for
value without notice. Indeed, we think the transaction can
not be deemed a purchase. The appellant, at sundry times,
had intrusted Lay with funds to be by him safely and securely
invested at a profitable rate of interest, and the conveyance
1871.] Morgan v. Clayton. 45
Opinion of the Court.
was .simply an assignment of the title which Lay held as se-
curity for the moneys so advanced, the legal effect of which
was to constitute the appellant a mortgagee in possession.
That this is the true construction of the original arrangement
between Lay and the appellant, we have no doubt. This view
of the case is in harmony with what he said to Heald and
Throop at their interview in the summer of 1864, that all he
wanted was his money invested and the interest thereon ; and
with the conversation in regard to the $30,000 to settle the
whole matter. This theory affords the only satisfactory reason
why the appellant took an assignment of the Lay notes and
mortgages when he took them up, instead of having them can-
celled, as he would have done if they had been, in fact, paid
as a part of the consideration of the property. The acts of
the paities can be reconciled on no other hypothesis.
It is said that neither Heald nor Throop had agreed to
redeem the land, and that they were under no legal obliga-
tions to do so. It is immaterial whether they had agreed to
do so or not. They had the legal right if they chose to exer-
cise it. No mortgagor is under any legal obligation to redeem
the mortgaged premises. It is his right, which he can elect to
exercise or omit.
It is conceded that this property would constitute a fund in
the hands of Lay or his assignee for the payment of the debt
due to his father, but if he could not realize it out of the rents
of the property the only remedy would have been to have fore-
closed the equity of redemption of the parties interested. Lay
was not, by any agreement or contract, invested with power
to make a sale in his own name that would cut off the equity
of redemption. He held the estate as trustee, and in no other
right, and the conveyance to appellant, without the consent of
Heald and the other parties, was a violation of the confidence
reposed in him. The equity of redemption of Heald was
never, in any lawful way, foreclosed or cut off.
The appellant having had constructive, if not actual, notice
through his agent of the prior equities before he made any
40 Greenebatjm v. Gage. [Sept. T.,
Syllabus. '
improvements or paid anything on the contract, as he states
it, can not be considered as having acquired the legal title to
the property, discharged from the equities of the appellee, and
the decree of the circuit court allowing a redemption is
affirmed.
Decree affirmed.
Mr. Justice Walker: I do not concur in the conclusion
arrived at by the majority of the court.
Henry Greenebatjm
V.
Albert S. Gage.
1. Contract — construction — parol evidence. Where a person holding
the note of another agrees with the maker to forfeit the note if lie should
buy or sell goods in the line of the wholesale millinery goods business in
the city of Chicago before the first of July, 1870; and bill of sale, from the
payee to the maker, bearing date prior to the agreement, showed a sale by
the former to the latter of all of his interest, the partnership goods, books,
good will, etc., belonging to a firm of which they were members, in a suit
on the note: Held, that it might be shown by parol that both papers,
although bearing different dates, were executed at the same time, and
formed part of the same contract ; that, by such evidence, it might be shown
what was the character of the business in which they were engaged, and to
which the bill of sale and good will related; but parol evidence as to the
negotiations that occurred previous to and at the time of the sale, are inad-
missible in such a case, because the}' were merged in the written agreement,
and the separate agreements must refer in some manner to the same thing
before they can be viewed as one instrument, and construed in the light
of surrounding circumstances.
2. Contract — breach of. Where it is claimed that such a contract was
broken, it must appear that the payee had, in point of fact, engaged in
1871.] Greenebaum v. Gage. 47
Opinion of the Court.
buying or selling goods in the line of the wholesale millinery goods busi-
ness at the place and before the time named in the agreement, for himself
or some other person with whom he had a joint interest. If he acted as a
clerk, or employee only, of persons engaged in the business, and not for
himself or a firm in the business, there was no breach of the contract ; nor
would the fact that he may have held himself out as a member of a firm
engaged in the business, forfeit the note, unless he was a member of I lie
firm. It is error to refuse to so instruct the jury. The true question whs,
whether he was in fact a member of the firm, or had an interest in the
same.
Appeal from the Circuit Court of Cook county ; the Hon.
Henry Booth, Judge, presiding.
Messrs. E. & A. VaxBuren, for the appellant.
Messrs. Sleeper & Whitox, for the appellee.
Mr. Justice McAllister delivered the opinion of the
Court :
Appellant, as plaintiff below, brought an action of assump-
sit in the Cook circuit court against appellee, and declared
upon a promissory note bearing date August 1st, 1867, made
by appellee to one Daniel Webster, whereby the former prom-
ised to pay the latter the sum of $10,000 on demand, with in-
terest at the rate of seven per centum per annum, payable
semi-annually. Pleas — the general issue, and two special
pleas setting up, in substance, that on to wit, the 1st day of
January, 1870, appellee and said Webster being co-partners
in business, the former purchased of the latter all of his inter-
est in the business, including the good will, for the sum of
$50,000, which he then paid to Webster, and at that time, as
a part of the transaction, Webster executed and delivered to
appellee the following agreement:
Whereas I am now the owner and holder of a certain prom-
issory note, made by Albert S. Gage, for $10,000, on which
$8,000 and interest to January 1st, 1870, has been paid; now
48 Greenebatjm v. Gage. [Sept. T.,
Opinion of the Court.
I hereby agree to and with Albert S. Gage, to forfeit said note
and forever hold him harmless therefrom, if I should buy or
sell goods in the line of the "Wholesale Millinery Goods busi-
ness," in the city of Chicago, before the first day of July,
1870, for myself or for any person or persons with whom I
may have a joint interest.
Dated, February 21, 1870. Daniel Webster.
The pleas averred that the note declared on, and that men-
tioned in said agreement, was one and the same ; that appel-
lant took it with full notice, and averred a breach of the
agreement.
Replications were filed traversing the matters of the pleas.
On the trial the note introduced by appellant had $8000
and interest indorsed upon it as paid, and was fully identified
as the note referred to in the agreement.
The signatures to the bill of sale and the agreement having
been admitted, these instruments were given in evidence by
appellee. The bill of sale is as follows:
I, Daniel Webster, of Chicago, State of Illinois, in consid-
eration of the sum of $50,000 in cash paid, the receipt where-
of is hereby acknowledged, do hereby sell, assign, transfer,
convey and set over to Albert S. Gage, of said city, all my
right, title, interest and property, of every name, kind and
description whatever, to which I am now or may hereafter be
entitled in the partnership goods, book accounts, credits, chat-
tels, good will or property of any name, kind or description,
belonging or to belong to the firm of Webster & Gage, now
doing business in the city of Chicago.
Dated, January 1st, 1870. Daniel Webster.
Appellee, having oifered himself as a witness, testified that
this instrument, though bearing date January 1st, was in fact
executed at the same time of the agreement of the 21st of
1871.] Greenebaum v. Gage. 49
Opinion of the Court.
February, 1870; and then, for the purpose of showing a con-
sideration for the latter agreement, the court permitted appel-
lee, against the objections of appellant's counsel, to state all
the negotiations and conversations between him and Webster
relative to the transaction, occurring prior to and cotempo-
raneously with the making of the instruments. Such testi-
mony was inadmissible.
These two instruments, if made at the same time, between
the same parties, and in relation to the same subject, must be
held to constitute but one contract. 2 Parsons on Cont. 503;
Stacey v. Randall, 17 111. 468. Though bearing different dates,
it wras competent to show, by parol, that they were in fact
made at the same time. This was done. They were made
between the same parties, and the only question that admits
of discussion is, whether they related to the same subject.
This, in general, must be determined by what appears by their
contents, which, however, may be viewed in the light of sur-
rounding circumstances. The instrument of sale from Web-
ster to Gage does not mention the kind of business in which
they had been engaged, though it does the name of the firm.
It appears, as an extrinsic fact, that it was the wholesale mil-
linery business, and by that instrument Webster not only sold
to Gage all his interest in the property, but in the good will
of the business, which expressly appears to have been carried
on in the city of Chicago.
The consideration is stated to have been §50,000. This,
then, in short, was a sale by Webster to Gage of all the right,
title and interest of the former in all the property of the firm,
as well as the good will of the business, for §50,000.
The agreement embraced in the other instrument clearly
relates to the good will of the concern which Gage purchased,
and discloses a clear intention to protect him in the enjoyment
of it, to a certain extent, by providing a forfeiture on Web-
ster's part of the §2000 due upon the note he held against
Gage, if the former should buy or sell goods in the line of the
4— 61st III.
50 Greenebaum i". Gage. [Sept. T.,
Opinion of the Court.
wholesale millinery goods business in the city of Chicago be-
fore the first day of July, 1870, for himself, or for any person
or persons with whom he might have a joint interest. Nothing
could be clearer than that these two instruments relate to the
same subject. Both are, therefore, to be regarded as one con-
tract, the same as if embodied in one instrument. It is com-
plete in itself, and the construction of it devolved upon the
court, for which purpose recourse might be had to the sur-
rounding circumstances to show the kind of business in which
they had been engaged, but not to negotiations or conversa-
tions prior to, or cotemporaneous with, its execution. These
were all merged in the written contract, which must be pre-
sumed to embrace all that was intended by the parties. The
consideration appears upon the face of the agreement, so that
the admission of such parol evidence can be justified upon no
such ground, as showing the consideration.
Evidence was given tending to show that Webster, before
the 1st of July, 1870, became in some way connected with a
firm engaged in the wholesale millinery business, under the
name of Webster Bros., near the place of business of appellee.
Whether such connection was that of a member of the firm,
or as being jointly interested in it, or that of a mere clerk,
was the principal question of fact to be passed upon by the
JU1T-
Appellee's evidence tended to show that he had frequently
held himself out as a member of the firm; while appellant's
tended to show that he was a mere employee or clerk, and had
no joint interest in the business, as partner or otherwise.
This is not like the kind of case where a party holding him-
self out as member of a firm will be held conclusively bound
as to all persons dealing with the firm on the faith of such ap-
pearances. But in order to constitute a breach of the contract
in question, and a forfeiture of the $2000, it was incumbent
upon the appellee to show, by a preponderance of evidence,
that Webster was, in point of fact, engaged in buying or sell-
ing goods in the line of the wholesale millinery goods business
1871.] GltEENEBAUM V. GAGE. 51
Opinion of the Court.
at the place and before the time mentioned in the agree-
ment, for himself or for some other person or persons with
whom he had a joint interest. If he was not buying or sell-
ing for himself, or the firm of Webster Bros., he having a joint
interest with them in the business as proprietor, but was act-
ing in the capacity of clerk or employee, then, no matter how
he held himself out, his acts would not constitute a breach of
the contract, nor the forfeiture follow. The court must en-
force the contract as the parties have made it.
The court was requested by appellant's counsel to instruct the
jury that, even if they should believe from the evidence that
Daniel Webster had called himself a member of the firm of
Webster Bros., that that will not defeat the plaintiff's recov-
ery, unless he, in fact, was owner or part owner, or that he
was interested in the firm as stated in the contract. The ques-
tion is, did he in fact have an interest in the business of the
firm?
That it was not enough to defeat the action for Daniel Web-
ster to hold himself out as a member of the firm of Webster
Bros., unless he, in fact, was such member of the firm, with
an interest in it, even if he did hold himself out as such mem-
ber of the firm.
These instructions were both refused, and exception taken.
We think they were based upon a correct construction of the
contract, and should have been given.
For the errors indicated, the judgment of the court below
must be reversed and the cause remanded.
Judgment reversed.
52 P. & R. I. R. W. Co. v. Warner. [Sept. T.,
Syllabus. Opinion of the Court.
The Peoria & Rock Island Railway Co.
V.
Wilder W. Warner.
1. P lea— justification — condemnation of right of way. A plea to an ac-
tion of trespass, justifying the entry on the land by a railroad company
under proceedings to condemn the right of way, in which notice was not
given to the owner, is insufficient to bar the action. A party must have
notice of such a proceeding before he can be deprived of his property. It
is required by the statute. Whether the proceedings were instituted under
the act of 1845 or that of 1852, the notice is equally required. Such a notice
is indispensable independent of statutory requirement.
2. Condemnation of eight of way. The act of 1845, entitled "Right
of Way," was in force notwithstanding the act o*f 1852, on the same sub-
ject, so far as it is not repugnant to the latter act, and it has been so recog-
nized by repeated decisions and by legislative enactment. The general
railway law of 1849 did not affect the act of 1845. The 19th section of that
act was intended to reserve the power in the legislature to fix the route
and termini of all roads organized under its provisions, and not to repeal
theflaw of 1845.
Appeal from the Circuit Court of Henry county ; the Hon.
George W. Pleasants, Judge, presiding.
Mr. O. E. Page, for the appellant.
Messrs. Bennett & Yeeder, for the appellee.
Mr. Justice Thornton delivered the opinion of the Court :
This was an action of trespass against the railroad company.
The defendant justified under its charter and the act of 1845,
entitled " Eight of Way." The only averment in the plea as
to notice to the party whose land was condemned, was this:
"The defendant avers that said plaintiff was present with said
commissioners before their report was signed, and had an op-
portunity to be heard upon his claim for damages."
1871.] P. & R. I. R. W. Co. v. Warner. 53
Opinion of the Court.
The questions are, as to the sufficiency of the plea, the re-
peal of the act of 1845 by the act of June 22d, 1852, and the
construction and effect of the latter act.
There is no sufficient averment of notice. The party whose
land is to be taken has the right to reasonable notice of the
time and place when and where application will be made for
the appointment of the persons who are to assess the damages.
For aught that is stated in the plea, he may have known
nothing as to the appointment of the commissioners, or of
their action, until the assessment of the damages.
But it is contended that the condemnation proceedings,
which constituted the justification, were instituted under the
law of 1845, and that it did not, in terms, require any notice.
There can scarcely be a doubt that the legislature intended
that notice should be given under that act.
The first section provides that, when the road shall be re-
quired to pass over the land of any person, and the owner
shall object, or there is disagreement as to the amount of
damages, then the application shall be made to the justice^of
the peace. This presupposes a notice. There could be no
difference as to the amount of damages, and the owner could
make no objection to the proceeding, when no notice had been
given.
In Gilbert v. Columbia Turnpike Co., 3 Johns. Cases, 107,
where a statute, similar to ours, except that it required notice,
was under consideration, the court held that, in such cases,
which so materially interfere with private rights, it must ap-
pear that there was a disagreement between the parties, before
the application can be made for the appointment of commis-
sioners.
On an appeal from the decision of the commissioners of
highways, relati\ e to laying out, altering, etc., a highway, the
act did not require any notice, and none had been given. In
such case, the court held that a notice of the appeal was in-
dispensable, though the act did not direct that it should be
given. Commissioners of Highways v. Claire, 15 Johns. 537.
54 P. & K. I. R. W, Co. v. Warner. [Sept. T.,
Opinion of the Court.
Section four of the act of 1845 provides that either party
may appeal to the circuit court within the time and under the
rules and regulations as are prescribed by law for taking ap-
peals from the judgments of justices of the peace.
It is beyond the ability of any ordinary mind to compre-
hend any benefit which might result from the right to appeal
from an assessment, of which the party had never heard. If
no notice is required, the grant of the appeal is the merest
mockery. The legislature never intended that the right of
appeal should be a delusion, as it inevitably must be in numer-
ous instances, if no notice is given.
But if no notice is required by the act of 1845, upon a fair
construction of it, still the railroad company was enjoined, by
the act of 1852, to give notice to the owner of the land of the
commencement of the proceedings to condemn.
In Austin v. Belleville & IUinoistovm Railroad Co., 19 111. 310,
the acts of 1845 and of 1852 were held to be general laws,
and in force.
In Taylor v. Pettijohn, 24 111. 312, it was held that the por-
tions of the act of 1845, which were not clearly repugnant to
the act of 1852, were in force.
In St. Louis, Jacksonville & Chicago Railroad Co. v. Mitchell,
47 111. 165, the proceedings to condemn were instituted under
the act of 1845.
The act of 1845 has so often been recognized, since the
enactment of 1852, that the validity of the former can not be
regarded as an open question in this court.
The legislature has also repeatedly recognized the validity
of the act of 1845. The act of 1852 contains no express re-
peal of it, but is amendatory of it. The title is, "An act to
amend the law condemning the right of way for purposes of
internal improvement." Sess. Laws of 1852, 146.
In 1869 it was enacted that the provisions of both acts
should apply to all proceedings for the condemnation of lands.
Sess. Laws 1869, 373.
1871.] P. & R. I. R. W. Co. v. Warner. 51
Opinion of the Court.
In view of these recognitions of the act of 1845 by both
the legislative and judicial departments of the State govern-
ment, its validity as a general law of binding efficacy, must
be regarded as settled, except where there is a clear repugnance
between it and the law of 1852.
Assuming, then, that our construction of the law of 1845,
as to notice, is not correct, we are of opinion that notice must
be given according to the provisions of the act of 1852.
The appellant corporation was created since the passage of
the act of 1852, and it is urged that the act has no application
to this company. In support of this position, reference is
made to the 19th section, which we quote : " All corporations
heretofore created by special charter of incorporation, or under
the general law, where the termini have been fixed by the
legislature, and none others, may avail themselves of this act."
The counsel misapprehends the meaning of the section.
The plain reading is, that all corporations with the termini
fixed by the legislature, shall have the benefit of the act.
The general railroad law of 1849 contained this reserva-
tion : " And the legislature hereby reserves the right to itself
to indicate the routes and termini of said roads, and the same
shall not be constructed or commenced without the express
sanction of the legislature of this State, by a law to be passed
hereafter."
The sole object of section 19 was to continue the reservation
of power in the legislature to fix the routes and termini of all
roads before the corporations should exercise the right of
eminent domain. It has no application to this company, for
the termini of its road are fixed by its charter.
We are of opinion that the plea was defective, and that the
demurrer was properly sustained.
The judgment is affirmed.
Judgment affirmed.
56 Talcott v. Draper. [Sept. T.,
Syllabus. Opinion of the Court.
Leman H. Talcott
v.
Charles Draper.
1. Conveyance — lands of a feme covert — statute of limitations. Where a
husbaudaud wife joined in the conveyance of the wife's land, she holding
the fee and he an estate by the curtesy, and after the conveyance was
made, a person, under claim and color of title, entered and occupied the
land and paid all taxes for seven successive years : Held, that the statute
operated to bar an entiy under either title.
2. Former decision. This case is distinguished from the case of
Shortall v. Hinckley, 31 111. 219. in that case, six of the seven years of
limitation had run when the conveyance was made, and another year
afterwards, whilst in this, possession was taken and the required acts un-
der the statute were performed after the conveyance was made.
3. Merger of titles--/^ simple and curtesy. In a conveyance like
the present, both the fee of the wife and the estate by the curtesy merged
and became united in the purchaser by the conveyance from the husband
and wife. As a general rule, where two estates are conveyed to a person,
the smaller is merged into the greater, and especially so when the inter-
ests of third persons are not affected thereby.
Appeal from the Circuit Court of Bureau county ; the
Hon. Edwin S. Leland, Judge, presiding.
Mr. George O. Ide and Mr. Milo Kendall, for the ap-
pellant.
Mr. Thomas J. Henderson and Mr. Joseph I. Taylor,
for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court :
This case is similar to that of Shortall v. Hinckley, 31 111.
219, and it is insisted by the counsel for the appellant that
that case governs the present. In that case, as in the one
before us, the husband and wife had united in a conveyance
of the wife's land in which the husband had a life estate as
1871.] Talcott v. Draper. 57
Opinion of the Court.
tenant by the curtesy. The court held that the grantee took
the two estates as they were held by the husband and wife,
and that he could not recover the life estate of the former be-
cause its recovery was barred by the statute of limitations,
nor could he recover the fee of the latter, because the husband
was still living, and that estate would not accrue until his
death.
An essential difference between the two cases is, that in the
former one the husband and wife conveyed after the statute of
limitations had commenced to run, and while it was run-
ning against the husband's life estate ; whereas, in the present
case, the entire seven years, the full term of limitation, ran
after the conveyance by the husband and wife to the plain-
tiff.
The liusband, as tenant by the curtesy, had a life estate in
the wife's land, one which he might sell and convey in the
same manner as any other life estate. He had the right of
possession during his life, and he might have commenced suit
and recovered possession in the same manner that other ten-
ants for life recover possession of their estates. The statute
of limitations has the same application to it that it has to
other estates of that nature, In the case of Shortall v. Hinck-
ley, six of the seven years of limitation had run against the
husband's life estate at the time he and his wife conveyed.
His grantee should have brought the suit for the husband's
interest within the seven years, but he suffered the remaining
one of the seven years to run, whereby, by operation of the
statute of limitations, the life estate of the husband became
barred and was vested in the adverse possessor, and he then
held it in the same manner and with the same rights that he
would have had if the husband had conveyed the same to him.
Jacobs v. Rice, 33 111. 371.
There are reasons why the doctrine of merger should not
apply in such case, and the two estates not be held to merge,
by their union, in the grantee. It would not consist with the
rule that, when the statute of limitations has once commenced
58 Talcott v. Draper. [Sept. T.,
Opinion of llie Conn.
to run, it will continue to run. The statute had commenced
to run against the husband's life estate, and its running could
not be arrested by a mere conveyance of the husband and
wife.
Six years of the statutory period had run in favor of the
adverse possessor, and a merger would impair his right to
acquire a bar by the lapse of another year.
It would also deny to the grantee the full benefit of the
wife's remainder — the right to take it unaffected by any run-
ning of the statute against it up to the time of her conveyance.
As merger is the act of the law, the law will not allow it to
take place to the prejudice of any one. In Gregg v. Tesson,
1 Black, 150, where there was a like decision as in Shortall v.
Hinckley, the husband and wife conveyed also, while the stat-
ute was running against the husband's estate.
But in the present case, the conveyance by the husband and
wife was made to the plaintiff on the 23d day of April, 1860
— the possession and payment of taxes by the defendant and
his grantors were for the years from 1860 to 1867, both in-
clusive— so that the entire period of seven years ran after both
the estates of the husband and wife had been conveyed to, and
were united in, their grantee.
As a proposition almost universal, where a greater and less
estate come together in one person by the same right without
any intervening estate, they will unite in one, the lesser being
merged or swallowed up in the greater. 1 Washb. Real
Prop. 95. By the conveyance of the husband and wife in this
case, the husband's life estate and the wife's remainder were
both conveyed to their grantee, vesting in him the entire es-
tate in the land ; and as, at that time, nothing had taken
place to affect either one of the estates, we perceive no good
reason for thereafter keeping up the distinction of two sepa-
rate estates. It was evidently a matter of indifference to the
grantee, as things then were, whether the merger took place
or not — there were no rights or interests of third persons to be
prejudiced by a merger.
1871.] Bentley v. Wells. 59
Syllabus.
We are of opinion there was nothing in the case to prevent
the operation of the doctrine of merger ; and that, from the
time of the conveyance, the grantee held the entire interest in
the land as one estate, against which the statute of limitations
might thenceforth commence to run and become a bar.
The judgment of the court below must be affirmed.
Judgment affirmed.
Mr. Chief Justice Lawrence and Mr. Justice Walker
dissenting :
We doubt the correctness of the rule laid down in the case
of Short all v. Hinckley, cited in the opinion of the court, but
we think there is no distinction in principle between that case
and the present, and unless that is to be overruled, the judg-
ment in this should be reversed.
Charles F. Bentley
v.
Samuel Wells.
1. Chattel mortgage — bankruptcy. Under the bankrupt law, a chat-
tel mortgage remains unaffected by the application of the mortgagor for,
and his obtaining a discharge in bankruptcy ; and, notwithstanding such
bankruptcy, the mortgagee, when the debt falls due, may take possession
of the mortgaged property as he could of his own temporarily in the pos-
session of the bankrupt. The assignee in bankruptcy only takes the equity
of redemption. The lien and the right to assert it remain unimpaiivd.
2. Same — when invalid. Where a person, unable to pay his debts, bor-
rows money and gives a chattel mortgage to secure its payment, although the
mortgagee knows the fact, that will not invalidate the mortgage. To have
that effect the mortgagee must know that the mortgagor was executing it
60 Bentley v. Well's. [Sept. T.,
Opinion of the Court.
in contemplation of bankruptcy, and with a view to prevent its going into
the hands of the assignee, and from being distributed among his credit-
ors. This is the only reasonable and just construction that can be given to
the bankrupt law.
Appeal from the Circuit Court of Whiteside county ; the
Hon. William W. Heaton, Judge, presiding.
Mr. O. F. Woodkuff and Messrs. Eustace, Baege & Dix-
on, for the appellant.
Mr. C. J. Johnson, for the appellee.
Mr. Chief Justice Lawrence delivered the opinion of
the Court :
We held, in Cole v. Duncan, 58 111. 176, that a petition in
bankruptcy by a mortgagor, and a decree declaring him a
bankrupt, would not prevent the State courts from taking ju-
risdiction of a bill to foreclose a mortgage. A similar ques-
tion is presented by this record. Here, the mortgagee of per-
sonal property took possession, under his mortgage, of the
mortgaged property, and the assignee in bankruptcy brought
against him this action of replevin. The mortgage was made
by one Lincoln, September 28, 1868, and on the 18th of De-
cember thereafter Lincoln filed his petition in bankruptcy.
The mortgage was given to secure the payment of money
loaned.
The 14th section of the bankrupt law, after providing that
the judge or register shall, by an instrument under his hand,
assign and convey to the assignee all the property of the bank-
rupt, excepting certain property therein exempted, reads as
follows: "And provided, farther, That no mortgage of any
vessel or of any other goods or chattels made as a security for
any debt or debts in good faith and for present consideration,
and otherwise valid and duly recorded pursuant to any statute
of the United States or any State, shall be invalidated or affected
hereby."
1871.] Bentley v. Wells. 01
Opinion of the Court.
This language is certainly sufficiently explicit. The mort-
gage was not " invalidated or affected " by the subsequent pro-
ceedings in bankruptcy, and when the debt secured by it be-
came due, the mortgagee had the same right to take possession
of the mortgaged property that he would have had to take
possession of his own if he had had any temporarily in the
custody of the mortgagor at the time of filing the petition.
The assignee in bankruptcy took only the equity of redemp-
tion. The lien of the mortgagee remained unimpaired, as did
also his right to assert it in any legal manner.
We have not access to the cases cited in Bump on Bank-
ruptcy, from the Bankrupt Register, but if any of them hold a
different doctrine from this, we should decline to follow them.
It is further urged by the appellant that the mortgage was
invalid because the mortgagor was insolvent when he made it,
and this fact was known to the mortgagee. But to render the
mortgage void, insolvency alone, and the knowledge of it on
the part of the mortgagee, are not sufficient. It is also neces-
sary, under the 35th section of the act, that the mortgage
should be' made " in fraud of the provisions of this act/' and
that the mortgagee should have reasonable cause to believe
that such was the object of the mortgagor.
The first clause of the section relates to transfers of prop-
erty made with a view to give a preference between creditors,
and "in fraud of the law," and avoids the transfer, if made
within four months before filing the petition. The second
clause avoids all transfers, including sales made six months
previous to the petition, in contemplation of insolvency, with
a view to prevent the bankrupt's property from coming to the
assignee, or to defeat in any way the object of the act. This
clause, however, like the other, requires, in order to avoid the
transfer, not only the fraudulent intent on the part of the
grantor, but that the grantee should have reasonable cause to
believe in the existence of such intent. This is the express
provision of both clauses of the section, and the only reasona-
ble construction it can receive is that the grantee or mortgagee
62 Bentley v. Weees. [Sept. T.,
Opinion of the Court.
should have reasonable cause to believe that the grantor or
mortgagor intends to avail himself of the bankrupt act, and
that the transfer or mortgage is made for the purpose of pre-
venting the distribution of his property required by that act,
or at least that such is one of his purposes.
It would be very unjust, and would greatly embarrass the
operations of trade, if it should become the settled construc-
tion of this law that every sale of property, even for a full
consideration, and in the utmost good faith, or every mort-
gage in equal good faith, must be held void because the
vendor or mortgagor is known at the time to be in straight-
ened circumstances, and within four months thereafter peti-
tions to be declared a bankrupt. This can not have been
intended by the framers of the bankrupt act, and the lan-
guage of the act justifies no such construction. A sale or
mortgage, otherwise unobjectionable, is not avoided by a subse-
quent bankruptcy, unless made in fraud of the act, or, in other
words, with a view of seeking the benefits of the act, and at
the same time defeating its requirements, and the vendee or
mortgagee must have reasonable grounds for believing in the
existence of such fraudulent intent. This fraudulent intent is
not shown merely by the subsequent bankruptcy, and the fact
that the bankrupt was, at the time of the sale or mortgage,
unable to pay his debts, and that the vendee or mortgagee had
good reason to know that fact. That is all that is shown in
this case.
If the framers of the law had intended this proof alone to
be sufficient — if the fraudulent intent is to be inferred, as a
legal presumption, from the mere proof of insolvency, and a
reasonable knowledge thereof — why did they require, in ad-
dition to these facts, the existence of a fraudulent intent, and
that the mortgagee should have reasonable cause to believe in
its existence? Why speak of fraudulent intent at all? No
reason can be given. As they required both facts to be proved
before avoiding the transfer, it is impossible for us to believe
they intended one fact to be inferred as a legal consequence
1871.] Bentley v. Wells. 63
Opinion of the Court.
from the existence of the other. When a statute provides
that a certain result shall follow from the proof of two de-
fined facts, the courts have no right to say the result shall
follow merely from the proof of one. This is making, not
construing, a statute.
The same construction must be given, in this respect, to the
second clause of the section as to the first. That the act
should declare void a sale, even for full consideration, if made
to prevent the property or its equivalent from coming to the
assignee in bankruptcy, we can well understand. Such a sale
would be in fraud of creditors. But we can not hold that the
purchaser of property in good faith is liable to have it taken
from him by an assignee in bankruptcy merely because he had
good reason to know, at the time of the purchase, that the
vendor was unable to pay his debts, and because the vendor
does, within six months, file a petition in bankruptcy. Men
may be practically insolvent, that is, unable, with the property
then owned by them, to pay their debts, and suspected to be
so by the community, and yet continue in business, with no
expectation of going through bankruptcy, but laboring on the
contrary to retrieve their circumstances, and often succeed-
ing in the effort. Yet, the construction contended for would
practically condemn every such man to bankruptcy, since no
purchaser from him could be secure of his title, and no cred-
itor could take a mortgage from him and extend the time of
payment of his debt with any confidence that his security
would not be taken away. The injustice and impolicy of such
a construction are very apparent.
We find no error in this record.
Judgment affirmed.
64 Anderson v. McCarty et al. [Sept. T.,
Syllabus.
Isaac Anderson
v.
Catharine McCarty et al.
1. Vendor and vendee—; forfeiture of contract — rights of purchaser
after. Where a person purchases a lot of ground and receives a bond con-
taining a clause authorizing a forfeiture on default in payment, and the
purchaser sells, and receives the pay for a part of the lot, to another, and
on default the contract is forfeited, and the widow of the second purchaser
afterwards buys and pays for the whole lot and improves the same : Held,
that she did not thereby become a trustee for the first purchaser.
2. Title bond— forfeiture. Where a title bond contains a clause au-
thorizing the vendor to declare the contract forfeited on non-payment of
instalments of the purchase rnone}^, and notice is given that a forfeiture
will be declared or payment enforced, and notice afterwards given that the
vendor had elected to declare a forfeiture of the contract : Held, that the
contract was thereby forfeited and the vendor could again sell the prop-
erty, and the first purchaser had lost all claim to the property.
3. Same. Where a title bond contains such a clause and default is
made in payment, a forfeiture may be declared by any act on the part of
the vendor which evinces an intention to declare a forfeiture, and will
prevent the vendor from enforcing the contract, such as giving notice
that a forfeiture has been declared, offering to sell the land to others, or
even placing it on a sale list, etc.
4. Purchaser — abandonment of contract. Where a person purchases
land and is notified that it is forfeited, and offers to pay no more purchase
money, and fails to pay taxes on the property or to do any other act to-
wards carrying out the purchase, for eight or ten }'ears, it will be pre-
sumed that he had entirely abandoned the purchase, and it would be in-
equitable to permit him to come in after that time, when the property had
risen in value, and large and expensive improvements had been made on
it, and hold the property.
5. Purchaser — no right to question the manner in which a subsequent
vendee holds. In such a case, the first purchaser can not be heard to urge
that the second purchaser, being a widow and administratrix of her hus-
band's estate, had used the funds of the estate to make the purchase. If
that were true, it could only concern her and her deceased husband's
heirs, and it would be for them to adjust their equities between them-
selves.
1871.] Anderson v. McCarty et at 65
Opinion of the Court.
Appeal from the Superior Court of Cook county; the Hon.
John A. Jameson, Judge, presiding.
Mr. W. T. Burgess, for the appellant.
Messrs. Gookins & Roberts, for the appellees.
Mr. Justice Walker delivered the opinion of the Court :
This was a bill in equity, brought by appellant, in the Su-
perior Court of Chicago, against appellees, to enforce a spe-
cific performance of an agreement, and to compel a convey-
ance of certain real estate in the city of Chicago.
It appears that in March, 1855, Naomi Johnson was the
owner of a piece of ground known as lot 2, in the east part of
Ellis' addition to Chicago ; that, at that time, she and her
husband, John Johnson, executed to Henry Smith a power of
attorney authorizing him to take charge of, lease, sell, or oth-
erwise dispose of the property; that, on the 2d day of Febru-
ary, 1856, they, by their agent, contracted to sell the lot to
appellant, and gave to him a contract for its conveyance on
his paying therefor the sum of $1400, payable at the office of
Ogden, Jones & Co., in Chicago — $200 in hand, $300 on the
1st days of February, 1857, 1858, 1859 and 1860, with six
per cent per annum, and all taxes levied for revenue purposes
after 1855, together with other assessments.
A strict performance of the contract on the part of appel-
lant was made of the essence of the agreement, and it provided
that, if default in the payment of either principal or interest
should be made for sixty days after the same became due, the
contract should become null and void at the option of the ven-
dors, and all payments thereunder should become absolutely
forfeited to the vendors. It appears that appellant paid $200
on the delivery of the contract, $372 for the second payment
at maturity; on the third payment $200 on the 15th day of
March, 1858, on account of the fourth instalment, and $164.22
5 — 6 1st III.
Gti Anderson v. McCarty et at. [Sept. T.,
Opinion of the Court.
as the balance of that instalment on the 13th day of the fol-
lowing May. He also paid taxes for 1858 and 1859, but no
other payments were made by him.
Appellant, on the 6th of February, 1857, sold to Patrick
McCarty a portion of the lot for $1000, and conveyed it to
him. On the 16th of March, 1858, McCarty died, leaving a
widow and heirs surviving him. Catharine McCarty became
the administratrix of the estate of her deceased husband. It
seems appellant, on the 29th day of April, 1856, sold and
agreed to convey to one Dykeman another portion of the lot
for §1000, which contract was transferred to one Titsworth,
who now claims its benefit. This last contract was not re-
corded until the 16th of August, 1869. In 1859, the agency
of Ogden, Fleetwood & Co., of this property, ceased, and
Henry S. Rucker was appointed agent, with a power of attor-
ney authorizing him to take charge of the property, to sell,
etc. On the 20th day of April, 1861, Mrs. McCarty pur-
chased the whole lot, paying to Rucker $500 as the consider-
ation, and receiving a deed therefor executed by Rucker as
attorney in fact of John and Naomi Johnson. She had, before
the commencement of this suit, placed improvements on the
ground costing over $5000.
It seems to be the theory of the bill, in part at least, that
Rucker only intended to convey to Mrs. McCarty the portion
of the property which her husband had purchased of, and paid
for, to appellant, and by mistake had conveyed the entire lot.
The evidence of Loomis clearly contradicts this theory.. He
swrears that he advised Mrs. McCarty to pay the $500 and
take the whole lot, and thus endeavor to save something of
the amount paid to appellant; that she was clisinclined to the
arrangement, but finally concluded to do so, and the purchase
was made. And the evidence of Fitch corroborates his testi-
mony, and the evidence of Mrs. McCarty is to the same effect.
These, since the death of Rucker, are probably the only per-
sons who know the facts. From the entire evidence, wre have
1871.] Andeeson v. McCaPwTY et al. 67
Opinion of the Court.
no hesitation in believing that it was the intention to sell, and
her design to purchase, the entire lot.
It then remains to determine what interest was acquired by
Mrs. McCarthy's purchase; whether she acquired the entire
title for herself and the heirs of her husband, or only the por-
tion conveyed to him by appellant, and holds the balance as a
trustee for him and his grantees. This depends upon whether
appellant's purchase was forfeited. Fitch swears that, first, a
notice was served on appellant that the fourth instalment was
due, and unless the money should be paid by a day named, the
vendors would elect to declare a forfeiture or to enforce pay-
ment. After the last payment fell due, he swears a formal
notice of a forfeiture was served on appellant, a copy of which
was produced, indorsed served on him on the 7th day of May,
1860. About the date of this notice there seems to be some
doubt, as it was torn off by Fitch, and who, in restoring it,
wrote it 1857 ; but he says that could not have been the true
date. This is apparent, as Rucker was not constituted the
agent for the property until in 1859, and his name is to the
notice, and it recites the fact that the instalments of 1859 and
1860 were both due. We must, therefore, conclude that it
was after February 1st, 1860. And this view is greatly
strengthened by the fact that there was an entry of the for-
feiture in Rucker's book, of May 5th, 1860. From all of this
evidence, we can entertain no doubt that a formal forfeiture
was declared, and due notice thereof given to appellant.
But even if it could be conceded that there was not a for-
mal notice of a forfeiture served on appellant, there is abun-
dant evidence of the declaration of a forfeiture. In the case
of Chrismanv. Miller, 21 111. 227, it was said that, so long as
the vendor reserves the right to sue on the covenants, he can
not treat the contract as forfeited. But when the purchaser
is in default he is at the mercy of the vendor, and the mere act
of offering the land for sale, or entering it in the sale book of
the vendor, or any other act showing he considers the con-
tract as ended, or has treated it as terminated, is sufficient to
68 Anderson t\ McCarty et al. [Sept. T.,
Opinion of the Court.
end the agreement and to deprive the purchaser of the right
to insist on a performance of the covenants, and the vendor
of the right to sue upon the contract. The mere act of selling
to a third person is, of itself, a sufficient election of the ven-
dor to forfeit the contract, and releases a remedy on its cove-
nants. Such is the undoubted effect of such a sale under such
an agreement. And to the same effect are the cases of Steele
v. Biggs, 22 111. 643; Minor v .Willard, 34 111. 38 ; Hurray v.
Schlosscr, 44 111. 14, and O'Neal v. The Wabash Avenue Bap-
tist Church, 48 111. 349.
The sale, then, to Mrs. McCarty, was, of itself, a sufficient
declaration of a forfeiture to terminate the contract. After
that sale the vendors could not have maintained an action on
the agreement to recover the purchase money, or have main-
tained a bill for a specific performance. When appellant
failed to meet the payments at the time specified, he was in
default and at the mercy of his vendors, and they exercised
the right of ending the contract and the purchaser took the
title.
♦ Again, Loomis swears that he, Rucker and appellant, met
and had an interview in reference to this property, when ap-
pellant agreed that it might be sold to Mrs. McCarty. From
this, and the fact that he had ceased to pay taxes, or, so far as
we can see, to make any efforts to perform his part of the con-
tract, for nearly ten years, we can draw no other inference
than he had abandoned the contract and all claim to the land.
It had, no doubt, become greatly depreciated in value during
the close money market after 1860, and he did not then re-
gard it of sufficient value to make an effort to pay the balance.
And as a further evidence of the fact, he. stood by, living in
the city, and saw large sums of money expended on the prem-
ises by Mrs. McCarty. This indicated that he had abandoned
all claim to the property, as, if he had not, it would be mani-
fest that he sought an unjust advantage in permitting her to
pay the taxes and to expend large sums of money in improve-
ments that he might ultimately appropriate them to his own
1871.] Anderson v. McCarty et al. 69
Opinion of the Court.
use. After such a delay, and the changed condition of the
property, improvement and appreciation by the growth of the
city and country, we feel no inclination to treat Mrs. McCarty
as a trustee, unless it was, at least, satisfactorily proved, which
has not been done in this case.
It is useless to say, because McCarty had purchased fifty feet
on the south side of the lot and paid appellant for it when he
had no title, and was not candid enough to so inform McCarty,
that Mrs. McCarty occupied such a relation to appellant or
to the property as to be unable to repurchase it, and the bal-
ance of the lot, without becoming his trustee. If a trust rela-
tion existed, upon what was it based ? Surely not on the fact
that appellant had sold her husband land for which he then
had, and subsequently acquired, no title ) obtained his money
for its full value, never refunded it or offered to refund it.
And this, so far as we can see, is the only ground, when it is
examined freed from extraneous circumstances, upon which a
trust could be claimed. Instead of its being equitable to
hold that such a transaction should create the relation of
trustee on the part of the purchaser or his heirs, it would be
highly inequitable and unjust. If any trust was created, ap-
pellant became McCarty's trustee for the thousand dollars he
obtained from him, and for which he gave no consideration.
Mrs. McCarty did not owe him anything, but he was indebted
to the estate if anything was due from one to the other party.
She made no promise or agreement to convey this property,
or any portion of it, to appellant. We can not discover the
slightest pretext for saying that she was under any obligation,
legal or moral, to purchase this property and hold it for more
than eight years for the use of appellant.
Nor is it any concern of appellant whether Mrs. McCarty
purchased it with her own or the money of her children ;
whether she claims it in her own right, or as trustee for her
children. Even if she had defrauded the heirs in the transac-
tion, we do not perceive that, by any process of reasoning,
appellant can derive the slighest benefit therefrom. Those are
70 Burrows r. Guthrie et al. [Sept. T..
Syllabus.
questions between her and the heirs of her husband, and are
for them to adjust. And, so far as we can see, the evidence
in relation to her claiming the taxes from the estate, and her
only claiming dower in the portion purchased by her husband,
can only relate to the settlement of equities between the widow
and the heirs.
After a careful examination of this record, we are unable
to see any error in the decree below, and it is affirmed.
Decree affirmed.
Robert Burrows
V.
Ossian Guthrie et al.
1. Awards — of the certainty required therein. As a general principle,
an award must be certain in itself, but certainty to a common intent is all
that is required. The award must clearly establish the rights of the par-
ties to the thing or matter in controversy, but parol evidence is always re-
sorted to for the purpose of identifying the matter or thing.
2. If the award settles the rights of the parties, and can be rendered
certain by reference to accounts or other documentary evidence, it will be
sustained.
Z. As, where an award makes reference to an account, the account may
be properly referred to for the purpose of ascertaining the meaning of or
explaining the award.
4. The award is to be judged of according to a common intent consist-
ent with fair and reasonable presumption, and if it is so far certain as, from
the nature of the subject of it, could be reasonably expected, and the direc-
tions of the arbitrators can, with tolerable ease, be reduced to a certainty,
as by reference to any written document or the inspection of any particu-
lar thing, house or land, it will not be impeachable on the ground of un-
certainty.
5. Same — when objection for uncertainty should be raised. The objection
that an award is not certain or final should be made before judgment is
pronounced thereon.
1871.] Burrows v. Guthrie et al. 71
Opinion of the Court.
6. Same — whether party estopped from denying validity of award by acting
under it. Where the affairs of a partnership had been submitted to arbi-
tration, aud after judgment was pronounced thereon, and at a subsequent
term of the court, one of the parties acted under the award by entering a
motion for a rule on the other-party, requiring the latter to make and file
under oath a detailed and itemized statement of all his receipts and dis-
bursements as receiver and trustee under and by virtue of the award, it
was held, that such party was thereby estopped from thereafter questioning
the validity of the award.
7. Same — conclusiveness of judgment upon. The judgment rendered
upon an award is conclusive of its validity unless impeached for fraud.
8. Same — compliance with Hie award enforced by attachment for contempt.
After judgment had been pronounced upon an award, and one of the par-
ties thereafter refused to comply with its terms, it was held, that at a sub-
sequent term the court might properly rule such party to comply with the
award within the time fixed by the court, and on his failure so to do, to
consider him as in contempt, to be dealt with accordingly.
Appeal from the Circuit Court of Cook county ; the Hon.
John G. Rogers, Judge, presiding.
Messrs. Turner, Brawley & Turner, for the appellant.
Messrs. Hardy & Herrick, for the appellees.
Mr. Justice Breese delivered the opinion of the Court :
This is an appeal from the circuit court of Cook county to
reverse a judgment rendered on a motion by appellee for a
rule upon appellant requiring him to comply with a certain
award.
It appears the award was made and published on the 30th
of September, 1869, and being produced in court on the 23d
of October, 1869, appellant filed eight objections to the award,
and to the entry of judgment thereon, all which objections
were traversed by appellees, and they pleaded, as in estop-
pel thereof, that after signing and sealing the award, and
before the same was filed in court, appellant freely, voluntarily
and fully consented to and accepted the award as binding and
72 Burrows v. Guthrie et al. [Sept. T.,
Opinion of the Court.
conclusive upon him in all things, and that he acted upon
the award by making, executing and delivering to appellees,
on the 30th day of September, 1869, his receipt or release in
writing in full of all demands, and a release of all actions,
suits, controversies, claims and demands whatsoever in accord-
ance with the said award ; that he took his share of the loose
property, paid his portion of the expenses of the arbitration,
and accepted the horses, wagon and harness awarded to him,
and allowed Ossian Guthrie to act as trustee or receiver, with
his full knowledge and consent; and they further averred, in
their plea of estoppel, that they themselves had, in good faith,
accepted the award with all its conditions, and have, since its
date, acted under it, and that Ossian Guthrie made, executed
and delivered to appellant a bond of indemnity precisely as
required by item seven of the award, conditioned as therein
required, and thereafter proceeded to collect the debts due the
firm, and to pay the debts of the firm ; and they further
averred that, upon filing the award in court, they had, in good
faith, and with the knowledge and consent of appellant, paid
all the outstanding debts of the firm, as provided in said
award, and were ready and willing to carry out the award
fully.
There was no issue made up on this plea, and at the Janu-
ary term, 1871, of the circuit court, appellant withdrew his
objections, whereupon it was ordered that judgment be en-
tered on the award, with costs to be taxed ; and it was further
ordered that the respective parties to the award be required to
do and perform the several and respective acts and things
which, by the award, they were severally and respectively di-
rected and awarded to do.
At the April term following, appellant entered his motion
for a rule upon Ossian Guthrie to make and file, under oath,
a detailed and itemized statement of all his receipts and dis-
bursements as receiver and trustee under and by virtue of the
award.
1871.] Burrows v. Guthrie et al. 73
Opinion of the Court.
This report was made by the trustee and receiver to the fol-
lowing June term of the court, and duly sworn to, and to
which no exception was taken.
At the same term appellees had entered their motion, based
on affidavits, for a rule upon appellant to comply with the
award in these particulars, namely :
1. That he deliver to Ossian Guthrie sixty-seven thousand
feet of lumber, consisting of scantling, joists and piece stuff,
which was, by the 8th and 9th specifications of said award,
ordered into the custody of said Ossian Guthrie.
2. That he dismiss, at his costs, the replevin suit of Rob-
ert Burrows v. George Kretsinger, Frederick S. Kretsinger,
Wardell Guthrie and Ossian Guthrie, now pending in the Su-
perior Court of Cook county, by virtue of which suit he, after
said award was made and assented to by him, wrongfully ob-
tained possession of said sixty-seven thousand feet of lumber.
3. That he pay to deponents' attorney a reasonable fee for
defending said replevin suit, and for such other services as are,
in the judgment of the court, made necessary by the wrongful
acts complained of.
4. That he at once pay to Ossian Guthrie the sum of one
hundred and forty-two and 76-100 dollars, which he, the said
Burrows, in violation of specification seven of said award, col-
lected, after said award was made, of T. F. Phillips, on a bill
of work done by said Guthrie and said Burrows, pertaining
to their co-partnership, previous to said submission to arbi-
trators.
In their own affidavits accompanying the motion, it is ex-
plained that this quantity of lumber was a part of a cargo
of the schooner Bean, which Burrows had purchased for the
firm of Guthrie & Burrows, of Loomis, Mason & Co., previous
to the arbitration, which was then on hand as the property of
that firm at the time of the award, and formed a part of the
lumber adjudicated upon in the award and referred to in clause
74 Burrows v. Guthrie H al [Sept. T.,
Opinion of the Court.
" eight," and was also a part of the lumber mentioned in clause
"nine" of the same award, and of which Ossian Guthrie had
received a bill of sale, but was not to be delivered by him to
Burrows, for the reason that the entire cargo was charged to
the firm of Guthrie & Burrows, and paid for out, of moneys
charged by him to said firm in his account rendered to the
arbitrators, and which account was used by the arbitrators as
the basis of their award. And it is also alleged in the affida-
vit, that this lumber was, at the time of the commencement
of the replevin suit by Burrows, in the possession of the Kret-
singers on their dock, or in store for the firm of Guthrie &
Burrows; and long after the award was made, and, in fact,
executed and fully assented to by both parties, Burrows falsely
made an affidavit in replevin that he was the owner, and law-
fully entitled to the possession of that lumber, and, in direct
violation of the aAvard, by virtue of the writ of replevin, seized
and took away from the deponents the lumber, the sole right
to the possession of which he, Burrows, well knew was vested
in said Ossian Guthrie by the award.
And they further allege, in their affidavit, that Burrows,
ever since the seizure of the lumber, has kept possession of it,
and excluded Ossian Guthrie from his rightful possession
thereof, to their great injury and the great delay and hindrance
of their business; that, by reason of the unjust action of Bur-
rows, deponents have been compelled to employ counsel to de-
fend the replevin suit, both for themselves and for the Kret-
singers, who were merely the custodians of the lumber for
Ossian Guthrie, and not interested in the possession of the
same.
Deponents further say, that, in the further violation of the
award, Burrows, on the 23d of March, 1870, collected of one
T. F. Phillips the sum of one hundred and fifty-two 76-100
dollars on a debt due the firm of Guthrie & Burrows in re-
spect of their partnership transaction, and specially mentioned
in clause "seven" of the award, and appropriated the same to
his own use, and has ever since retained that money, well
1871.] Burrows v. Guthrie et al. 75
Opinion of the Court.
knowing that Ossian Guthrie alone was entitled to receive
that and all other moneys due that firm.
An answer was put in by appellant to these allegations, veri-
fied by his own affidavit, and the court fully examined all the
testimony produced by the parties' on the hearing of the
motion, which included the affidavits of the arbitrators and
of the Kretsingers, and the order of the court made at the
January term, 1871, above recited, entering a judgment upon
the award at that term, all objections to the award having
been withdrawn by appellant.
The testimony introduced by appellant in no respect weak-
ens the claim set up by appellees to have the rule as moved
for.
The court, after a hearing of all the evidence, entered judg-
ment substantially as follows :
That said Robert Burrows, within five days from the entry
of this order, deliver to said Ossian Guthrie sixty-seven thous-
and two hundred and three feet of lumber, the balance of the
lumber belonging to the firm of Guthrie & Burrows, replevied
by said Burrows, after said award, the charge and custody of
which, under the 8th specification of said award, was adjudged
and awarded to him, and that in default thereof, the said Rob-
ert Burrows be attached for contempt.
To reverse this judgment, Burrows appeals.
The submission of the parties recites substantially that,
Whereas, appellant and appellees, by a writing dated April 28,
1869, entered into co-partnership in the business of construct-
ing sidewalks, etc. ; and whereas, divers disputes had arisen
between the parties concerning the dissolution of said co-part-
nership, and the proper division and disposition of the profits
and losses, and of the property and assets thereof; all said
matters in dispute, and all other matters pertaining to the
firm and its business, and none of same being in suit, are sub-
mitted as aforesaid, the award to be made by October 1st,
76 Burrows v. Guthrie d al. [Sept. T.,
Opinion of the Court.
1869 : Provision, that the statutes of Illinois, in relation to
arbitrations, shall govern the arbitrators and parties, and that
the circuit court of Cook county shall render judgment upon
the award to be made.
The arbitrators, it would seem from this award, thoroughly
investigated all the matters in difference submitted to them,
and made a comprehensive and specific award, containing
twelve clauses, among which it is only necessary to notice the
following:
Seventh. That the business shall be closed up, and all moneys
shall be collected for work by said Ossian Guthrie, who shall
give to said Robert Burrows a bond of indemnity, that he
will faithfully carry out all the provisions of the foregoing
arbitration, and shall pay all sums collected for and on account
of said contract, after paying all debts and liabilities, as afore-
said, to said Wardell Guthrie and Robert Burrows, each to
share and share alike in all moneys so collected.
Eighth. That said Ossian Guthrie shall have the charge of
all lumber, tools and materials, contracts, receipts for work,
certificates, etc., and he shall use due diligence to have all
matters closed up as soon as practicable.
Ninth. That said Ossian Guthrie shall deliver up to said
Robert Burrows all lumber that he may have received a bill
of sale of, that is not charged by said Burrows, and paid for
out of moneys so charged by him in his account rendered.
Tenth. That said Ossian Guthrie shall be, and is hereby
made the trustee and receiver of said Guthrie & Burrows, and
settle up all matters pertaining to such contract, and shall have
the full control of all the assets of the company, and be em-
powered to make all settlements, without impeachment for
waste, on the said outstanding claims due Guthrie & Burrows,
and O. & W. Guthrie, with the city of Chicago.
Exceptions are taken in this court, by appellant, to clauses
"eight" and "nine," he insisting that, as this is a statutory
1871.] Burrows v. Guthrie et al 77
Opinion of the Court.
proceeding, it is subject to the strict rules applicable to such
cases; that the award must speak for itself, and no resort can
be had to extraneous circumstances to explain its meaning.
As a general principle, an award must be certain in itself.
Howard v. Babcock, 21 111. 259. But the degree of certainty
required is explained in the case to which reference was made,
McDonald v. Bacon, 3 Scam. 431, which is, certainty to a com-
mon intent. The award must clearly establish the right of
the party to the thing or matter in controversy, but parol evi-
dence is always resorted to for the purpose of identifying the
matter or thing. This is illustrated by the case of Whittemore
v. Mason, 14 111. 392, where arbitrators were called upon to
decide to which party a portion of a certain fence belonged.
They decided that one of the parties might remove the rails
and stakes put in the fence by one Magoon. It was held the
award was sufficiently certain, as much so as the nature of the
case admitted. It established the rights of the parties, and
provided a test by which the property of each could be ascer-
tained. It was enough to decide to whom the rails belonged,
leaving it to the parties to identify and recover them.
So here, the lnmber mentioned in clauses "eight" and
" nine" is identified by the affidavits, so clearly as to leave no
room for doubt or mistake. And it will be seen by clause
" tenth/' that Ossian Guthrie was made the receiver and trus-
tee of this concern to receive the assets, pay the liabilities, and
close up the concern; the eighth clause, therefore, could have
but one meaning, and. that is, that the partnership lumber,
tools and materials are intended, and them only. What those
articles were, is a question of identity to be settled by proof.
The ninth clause also explains the eighth, as by that Ossian
Guthrie is required to deliver up to Burrows all lumber that
lie may have received a bill of sale of, which was not charged
by Burrows and paid for out of money charged by him in
his account rendered. Whatever lumber Burrows bought on
the responsibility of the firm, was to be held as firm lumber;
that which he bought on his own personal liability was to be
7S Burrows v. Guthrie et al. [Sept. T.,
Opinion of the Court.
his own, and Ossian Guthrie was to deliver it up to him. In
his account rendered to the arbitrators, appellant claimed that
he had purchased the cargoes of two schooners, one the "John
Bean," and the other "The Fashion," all of which was depos-
ited on Kretsinger's dock. If appellant charged this lumber,
in his account rendered to the arbitrators, to the firm of Guth-
rie & Burrows, then clearly it was remitted by the award to
the possession of the receiver, or trustee. That a portion of
it did belong to the firm is clearly proved, and is part of the
same lumber appellant replevied from the Kretsingers.
The lumber mentioned in clause "nine," it appears by the
testimony, was lumber furnished by appellant, proved by him
and allowed by the arbitrators as a proper bill against the firm
of Guthrie & Burrows, and was part of the cargo of the
schooner Fashion, which appellant had purchased for his own
private use, and had not charged it to the firm. The portion
remaining of the cargo of the schooner "John Bean" incon-
testibly belonged to the firm, the possession of which was
awarded to Ossian Guthrie by the eighth clause, the trustee
and receiver of the concern. What is meant by the bill of
sale received by Ossian Guthrie of lumber, and which he is to
deliver up, is explained by the testimony of Sherman, one of
the arbitrators, in this way : that the cargo of the " Bean "
bought by appellant for the firm, was not, in fact, paid for by
appellant in money, but, without the authority of his co-part-
ner, appellant wrongfully executed promissory notes therefor,
signed with the firm name, and pledged them to the Fourth
National Bank, and appropriated the proceeds to his own pri-
vate use.
These notes were presented to appellees for payment, in ap-
pellant's absence, when Ossian Guthrie bought the notes of the
bank, and to secure himself, took a bill of sale from the bank
of the lumber. This bill of sale covered parts of the cargoes
of "The Fashion" and "John Bean" — the former being
awarded to appellant, and the latter to appellees.
1871.] . Burrows v. Guthrie et al. 79
Opinion of the Court.
It is entirely legitimate to refer to this account rendered by
appellant in explanation of the award. Farr v. Johnson, 25
III. 522.
The result of the arbitration in regard to the lumber was
this: that the firm lumber replevied by appellant of the Kret-
singers, should be in charge of Ossian Guthrie; that portion
of the lumber of which Ossian had a bill of sale from the
bank was to be delivered by him to appellant. This disposes
of the lumber finally and certainly.
An award is not to be certain to every intent in particular,
but as this court said, in Henrichson v. BeinbacJc, 33 111. 302,
it is to be judged of according to a common intent consistent
with fair and reasonable presumption, and that courts will not
suffer an award to be disturbed which is so far certain as, from
the nature of the subject of it, could be reasonably expected,
and when the directions of the arbitrators can, with tolerable
ease, be reduced to a certainty, as by reference to any written
document, or the inspection of any particular thing, house or
land, an award will not be, on such ground, impeachable. A
reference is made to Caldwell on Arbitration, 251.
Arbitrations are regarded, in modern times, more favorably
than formerly, and if they settle the rights of the parties, and
can be rendered certain by reference to accounts or other doc-
umentary evidence, they will be sustained. Force is given to
the favored maxim of the law, "id certum est quod certum reddi
potest"
These objections, that the award wTas not certain or final,
should have been made at the January term, 1871, before
judgment was pronounced on the award. That judgment is
conclusive of the validity of the award, unless impeached for
fraud. Appellant has acted under the award by calling upon
the trustee and receiver to render an account, and this estops
him from now questioning its validity. There is no doubt,
from the whole record, that the award was, when published,
satisfactory to all parties. All the affairs of the partnership
80 Burrows v. Guthrie et al. [Sept. T.,
Opinion of the Court.
were settled by it, on just principles, and appellant ought to
perform it on his part.
Some objection is made by appellant to the expression in
clause eight, that Ossian Guthrie shall have charge of the
lumber, etc., and he contends that it did not justify the court
in deciding that the lumber should be delivered to Ossian
Guthrie.
It will be observed that Ossian Guthrie was appointed re-
ceiver and trustee, clothed with the powers and burdened with
the duties of that position, and recognized as such by the court
in pronouncing judgment on the award at January term, 1871.
Being such receiver, and placed in charge of the lumber, etc.,
he must necessarily have possession of it, and to get possession,
appellant, who wrongfully withheld it, was bound to deliver
the possession. As a member of the firm, appellant had no
right to the possession after the award was published. If a
member of a firm could so act, the affairs of the co-partner-
ship could not be settled.
In conclusion, we are of opinion, as the validity of the
award had been adjudged by the court at the January term,
1871, and appellant was contumacious, the court, at the sub-
sequent term in June, had a right to rule him to comply with
the award within the time fixed by the court, and on his fail-
ure, to consider him as in contempt, and to be dealt with ac-
cordingly.
Perceiving no error in the judgment, it must be affirmed.
Judgment affirmed.
1871.] Liebbrandt v.Myron Lodge No. l,O.F.O. of C. 81
Syllabus. Statement of the case.
Gottlieb F. Liebbrandt
v.
Myron Lodge No. One, of the Old Free Order
of Chaldea.
1. Tender — what amounts to. A party having executed to Myron Lodge
No. 1, of the Old Free Order of Chaldea, a certain promissory note, stated
that, after the maturity of the note, he offered in open lodge of said Order to
the said lodge itself, and members present, to pay the note and interest ;
that they then and there refused to take the money and gave him further
time without his wish, knowing that, at the time he so offered to pay the
note and interest, he had the money to do it with : Held, that an offer to
pay in the manner stated did not amount to a tender.
2. Surety — release of, by agreement of the payee with the principal maker
of a note to extend the time of payment. An agreement by the payee of a
promissory note, with the principal maker, to extend the time of payment
without a consideration, does not release the surety from liability.
Appeal from the Circuit Court of Cook county ; the Hon.
E. S. Williams, Judge, presiding.
This is an appeal from the judgment of the court below,
refusing to grant a motion made by Gottlieb F. Liebbrandt to
set aside a judgment as to him, rendered May 19, 1870, by
confession on a warrant of attorney against him, John D. Ries
and F. Peters, and in favor of Myron Lodge No. 1, of the Old
Free Order of Chaldea, upon the following promissory note :
$100. "Chicago, Oct 5th, 1857.
"One year after date, for value received, we jointly and
severally promise to pay to Myron Lodge ~No. 1, A. U. O. C,
or bearer, the sum of $100, with interest at ten per cent per
annum.
John D. Ries,
F. Peters,
G. F. LlEBBRAKDT."
6— 61st III.
82 Liebbraxdt v. Myron Lodge No. 1,0. F. O. of C. [Sept.T.,
Opinion of the Court.
In support of the motion, two affidavits were filed:
Affidavit of Leibbrandt, that he made the note as surety
only, which fact was then, and always known, to the payee ;
that since the execution of said note affiant never heard of the
same, or knew who held it, until the rendition of said judg-
ment ; that affiant supposed said note had been paid by Hies,
for whose benefit the same was made, and that he had made
diligent inquiry for his co-defendant Peters, whom he be-
lieved to be dead, he not having been heard from for about
eight years.
Affidavit of Ries, that he was principal, and the other mak-
ers of the note sureties; that, after the making of the note,
about January 1, 1859, affiant offered, in open lodge, to the
said lodge itself, and members present, to pay the note and
interest aforesaid; that they then and there refused to take
the money ; that further time was given him without his wish,
and without the knowledge or consent of his said sureties and
co-makers ; and that, at the time he so offered to pay the note
and interest, he had the money to do it with, which the offi-
cers and members of said lodge then and there well knew ;
that he believed his co-defendant Peters, to be dead.
Mr. Thomas Shirley, for the appellant.
Messrs. Bushnell & Frake, for the appellee.
Per Curiam : The affidavits upon which the motion was
made to set aside the judgment entered upon the warrant of
attorney, disclose no defense to the note, or ground for equit-
able relief. There was no tender of the amount made. An
offer to pay in the manner stated does not amount to a tender.
The supposed agreement with the principal in the note to
extend time of payment, is lacking in an essential element of
a valid agreement. It was wholly wanting in consideration,
and no time was specified. No act was done which would
legally tie the hands of the plaintiff below for a single instant.
The judgment of the court below is affirmed.
Judgment affirmed.
1871.] Delano v. Bennett. 83
Syllabus. Opinion of the Court.
Sophia C. Delano
v.
John C. Bennett.
1. Ejectment— judgment nunc pro tunc — new trial. Where a trial was
had and a verdict found, but no judgment entered, and more than a year
subsequently the court made an order vacating a judgment nunc pro tunc,
and granting a new trial, the effect of this order was simply to set aside
the verdict and grant a new trial.
2. Trial— judgment — non-suit. Where a party, supposing the court
erred in vacating a judgment in ejectment after the expiration of a year,
when no such judgment had ever been rendered, and when the case was
called for trial the attorne}" for plaintiff withdrew from the case, and the
court proceeded to try it by a jury, the trial resulting in a verdict and judg-
ment for defendant: Held, that this was not error. The cause was in a
condition to compel a trial or a non-suit. It was regularly on the docket,
a new trial had been granted, and it was called for trial in its order.
3. Same. Plaintiff's attorney was in court, and, without reasons, objected
to a trial. The other part)', as was his right, insisted upon a trial, and the
court had no power to dismiss the suit for want of prosecution, as in case
of a non-suit, because the plaintiff, being present, must elect to take a non-
suit, or the cause must go to trial.
4. Practice — dismissing suit. If, when the cause is called for trial, the
plaintiff does not appear, the court may dismiss the suit for want of pros-
ecution, and render judgment as in case of non-suit. The withdrawal of
counsel from the case is not a withdrawal of the case from the court.
Appeal from the Circuit Court of Mercer county; the Hon.
Arthur A. Smith, Judge, presiding.
Mr. John C. Pepper, for the appellant.
Messrs. Bennett & Veeder, for the appellee.
Mr. Justice McAllister delivered the opinion of the
Court :
This was ejectment, brought to the April term, 1866, of the
Mercer circuit court, by appellant, against James Gilchrist.
84 Delano v. Bennett. [Sept. T.,
* Opinion of the Court.
At the September term, 1866, by order of the court, appel-
lee was substituted in the place of Gilchrist, as defendant, and
the cause continued. At the April term, 1867, appellant made
a motion for judgment on the 3d and 4th counts of the declara-
tion, and appellee a cross motion for leave to plead to the
same. The court overruled the original and sustained the
cross motion, and the record says : " Thereupon came the
parties and their attorneys, joined issue, waived a jury, and
for trial submit this cause to the court/' The record contains
no plea.
At the April term, 1867, appellant obtained leave to with-
draw her submission of the cause, and title papers, and the
cause was continued by the court at her costs.
At the February term, 1868, to wit, on the 2d day of March,
1868, the cause was tried before the court and a jury, at which
trial a verdict was returned in favor of appellant, but upon
which, so far as the record shows, no judgment was ever ren-
dered. But it appears from the record that the cause was upon
the docket of the October term, 1868, and continued by the
court.
At the June term, 1869, the court made an order nunc pro
tunc, as of the October term, 1868, purporting to vacate a judg-
ment and granting a new trial in the cause.
At the October term, 1870, the parties aj)peared by their re-
spective attorneys, and the cause was called for trial, where-
upon appellant's counsel objected to its being tried. The
court overruled the objection, and appellant excepted. A
jury was called; appellant's counsel then, without submitting
to a non-suit, withdrew from the case, but the court allowed
the trial to proceed, and a verdict was returned in favor of
appellee, upon which judgment was rendered against plaintiff
below, and she brings the case to this court by appeal.
The first point relied upon for reversal is the nunc pro tunc
order made at said June term. Appellant's counsel assumes,
in argument, that, by that order, the court set aside a judgment
1871.] Delano v. Bennett. 85
Opinion of the Court.
after the expiration of a year. No such question, how-
ever, is presented by the record, because that shows nothing
more than a trial and verdict at the February term, 1868. No
judgment was entered upon the verdict, at least none is shown
by the record. The effect of the order, therefore, is that simply
of granting a new trial in a cause standing upon a verdict, and
upon which error can not be assigned.
The second point is equally untenable. It is, that the court
erred in overruling appellant's objection to the trial of the
cause, and that, after her attorney withdrew from the case, the
court should have entered judgment as in the case of non-suit.
To the first Ijranch of this objection, we can only answer that
we are unable to discover any reason why the cause was not in
a condition to compel plaintiff below to go to trial or submit
to a non-suit. Anew trial had been granted; it was regularly
upon the docket, and, for aught that appears, was reached for
trial and called in its proper order. To the second branch
we say that the appellant's attorney was present in court when
the cause was called for trial. He objected to a trial, without
reasons. The appellee's attorney insisted upon a trial, as was
his right. In such a case, it was not for the court to dismiss
the case for want of prosecution, and enter judgment as in
case of non-suit, because the plaintiff, being present, must elect
to suffer a non-suit, or the case should go to the jury. " Every
person desirous of suffering a non-suit on trial, shall be barred
therefrom unless he do so before the jury retire from the bar."
E. S. sec. 29, p. 417.
It would be a singular practice, if a plaintiff could not ob-
ject to the motion of a defendant to compel him to go to trial,
without exposing himself to the danger of having his cause
dismissed.
If, when a cause is regularly called upon the docket, the
plaintiff do not appear, the court should dismiss the suit for
want of prosecution, and render judgment as in case of non-
suit. But if he appear, and is present when the trial com-
mences, then, though he object to the cause being tried, yet,
SQ City of Chicago v. Hislop. [Sept, T.,
Syllabus.
if he desire a non-suit, he must make his desire known, by-
asking for it. The equivocal act of counsel withdrawing from
the cause, is not a withdrawal of the cause from the court.
This case illustrates the dangers attending the practice of
counsel staking the merits of their case upon a supposed tech-
nicality.
The judgment of the court below must be affirmed.
Judgment affirmed.
City of Chicago
v.
Margaret Hislop.
1. Highway in the city. A tunnel under the Chicago river in the
city of Chicago is one of its highways, and as such, it was the duty of the
city to use all reasouable efforts to keep it in a safe condition for travel ;
and if that could not be done without stoppage of travel for a time, then
the approaches should have been so guarded as to prevent persons from
entering therein, or in some manner warned of the danger. Or it should
have been closed. It was negligence to keep it open for passage, to the
peril of life.
2. Same — in dangerous condition. When the tunnel leaked, and large
quantities of ice had formed on the foot way, and about the middle of it,
where the peril was the greatest, the ice had been chipped up and not re-
moved, and could not be seen until the passenger was in its midst, the foot-
way was unsafe and very dangerous, and had so remained a long time be-
fore the accident. In its dangerous condition, it was the duty of the city
either to have barred all ingress or to have given notice of the probable
danger, and where the person injured was guilty of no want of care, the
city must be held liable.
3. New trial — newly discovered evidence. Where the newly discovered
evidence is inconclusive in its character, and such as, if it had been heard
on the trial, and the verdict against it, the court would not have set the ver-
dict aside, a new trial should not be granted, that it might be admitted be-
fore another jury. It is only under very peculiar circumstances that a
new trial will be granted to enable the impeachment of witnesses.
1871.] City of Chicago v. Hislop. 87
Opinion of the Court.
Appeal, from the Circuit Court of Cook county.
Mr. I. N. Stiles, for the appellant.
Messrs. Winston, Campbell & Willard, for the appellee.
Mr. Justice Thornton delivered the opinion of the Court:
It is assumed that the verdict in this case was against the
law and the evidence; that the city had used reasonable care,
diligence and skill in the construction and oversight of the
tunnel, where the injury occurred; and that a new trial should
have been granted, on account of new and material evidence,
discovered since the trial, which shows negligence on the part
of appellee.
The law of the case is simple, and was correctly expounded
to the jury in the instructions given, and of which no com-
plaint is made.
It was admitted, upon the trial, that the footway of the tun-
nel, where the leg of appellee was broken by a fall upon the
ice, was a public highway of the city of Chicago. As such, it
was the duty of the city to use all reasonable efforts to keep
it in a safe condition for travel, and if this could not be done
without a stoppage of the travel for a time, then the ap-
proaches to the tunnel should have been so guarded as to pre-
vent persons from entering therein, or they should, in some
manner, have been warned of the danger. This dark passage-
way, under ground, in its condition at the time of the accident,
should have been closed. It was negligence to keep it open,
and thus entrap passengers into it, to the peril of life and*
limb.
If there was no negligence on the part of the party injured,
the city was clearly liable.
The tunnel leaked, and large quantities of ice accumulated
on the footway. About the middle of it, where the peril was
the greatest, the mass of ice, which had been chipped up and
not removed, could not be perceived until the passenger was
88 City of Chicago v. Hislop. [Sept. T.,
Opiuiou of the Court.
in the midst of it. It is not denied that the footway was, at
the time, unsafe; indeed, extremely dangerous.
The evidence shows that the injury occurred on the 6th of
March ; that for four weeks previous thereto the footway was
dangerous ; that the chopped ice was of the depth of six
inches, and in some places more; that about the middle of the
tunnel the entire footway was covered with ice ; that persons
frequently fell down in passing through it, and that, from the
1st of February until the 6th of March, it had been closed a
part, and sometimes the whole, of certain days.
During all this time the city employed laborers to plug up
the holes and prevent the leakage of the water, and to cut up
the ice and remove it; but the water continued to leak and
the ice to accumulate. A policeman was also stationed there,
but he warned no one of the danger.
Under the facts, and in the exercise of proper precaution,
and with due regard to the safety of passengers, it was the
duty of the city either to bar all ingress to this perilous way,
or to give notice of the probable danger, that it might have
been avoided.
There is no proof of want of due care on the part of ap-
pellee. She testified that any danger of the footway did not
occur to her until about the middle of the tunnel, where it
was not well lighted, and that she endeavored to exercise
proper care.
Her daughter testified that she neither knew nor had heard
of any danger when they entered the tunnel.
Mrs. Doyle, who accompanied appellee, testified that they
had no knowledge of the ice until entrance into the tunnel.
We do not think, therefore, that the verdict was against
either the law or the evidence.
Should a new trial have been granted on account of the
newly discovered evidence?
The affidavit upon which the motion was based sets forth
substantially that, on the 6th of March, affiant met two women
and a young girl, who were apparently intending to pass
1871.] McWilliams et al. v. Morgan, Jr. 89
Syllabus.
through the tunnel; that he said to them: "It is almost im-
passable ; it isn't safe for any person to try it, especially a lady ;
you might get your limbs broke ;" and that affiant had no
doubt that appellee, her daughter, and Mrs. Doyle, were the
persons accosted by him.
The affiant does not state that he had ever met the parties
before the 6th of March, 1869, or between that time and the
date of the affidavit, in January, 1871. The meeting at the
tunnel was casual and momentary, and nearly two years had
elapsed since that time and the making of the affidavit.
The three persons referred to in the affidavit had, upon the
trial, denied all knowledge of the dangerous condition of the
tunnel, until they had arrived at the center of it.
This evidence, discovered since the trial, is not conclusive.
We should feel compelled to sustain the verdict, even if the
additional evidence had been considered by the jury. The
only effect of it would be to lessen the credibility of the wit-
nesses upon the other side. A new trial will never be granted
merely for the impeachment of a witness, unless under very
peculiar circumstances. Martin v. Ehrenfels, 24 111. 187;
VRidy v. Fitzgerald, 40 111. 311.
We do not think that the demands of justice would be sub-
served by granting a new trial.
The judgment is affirmed.
Judgment affirmed.
David McWilliams et al.
Richard P. Morgan, Jr.
Injunction — town plat — dedication. A person platted a tract of land
into town lots and blocks, designating- the streets separating the blocks.
The plat showed two strips of about fifty feet in width, on each side of the
90 Mc Williams et ol. v. Morgan, Jr. [Sept. T.,
Opinion of the Court.
grounds held by a railway company for right of way, marked "depot."
These strips remained unoccupied and uninclosed for a number of years,
being used by the public as a passwajr to and from the depot, until the pro-
prietor of the town erected on one of the strips a crib, and by himself, or
tenants, occupied the same: Held, that none or all of these acts proved
an intention to dedicate these grounds to the public, and the fact that the
owner marked these strips "depot," negatives the idea of an intention to
dedicate. And there being no dedication to public use, he could not be en-
joined from using the grounds for his private use.
Appeal from the Circuit Court of Livingston county; the
Hon. Charles H. Wood, Judge, presiding.
Mr. L. E. Payson, for the appellants.
Mr.. Hamilton Spencer, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court :
The only question presented by this record is, was there a
dedication of the strip of land in question, fifty feet in width,
to the public use, by Morgan, the defendant?
August 6th, 1853, Morgan conveyed to the Chicago & Mis-
sissippi Railroad Co. a right of way, one hundred feet wide,
through the tract of land on which the strip of land is situ-
ated, and in the deed made provision for the erection and
maintenance of a depot thereon, in case a town should after-
wards be located on the tract.
About January 30, 1854, Morgan did lay out at that point
the town of Dwight, and a plat thereof was recorded in the
proper office.
In the center of the town plat there was designated a hex-
agonal piece of ground, bounded on the east and west by streets
named East and West streets, respectively. This piece of
ground included within its limits the ground upon which was
the right of way, one hundred feet wide, theretofore granted
by Morgan to the C. & M. R. R. Co., but not shown by any
lines upon the plat, and fifty feet in addition on each side of
the right of way ground, making, in all, an irregularly shaped
1871.] McWillta ms et al. v. Morgan, Jr. 91
Opinion of the Court.
piece of ground, for the most part about two hundred feet
wide and about one thousand feet long, the main track of the
C. & M. R. R. Co. marked as running directly through the
center. This tract was marked upon the plat as a single par-
cel, and recorded with the word " depot" upon it.
The strip of land in question is the east fifty feet, lying be-
tween the right of way ground and East street. At that time
the whole of the land upon which the village stands was va-
cant and uninclosed, having recently been purchased from the
Government.
This piece of ground, so marked upon the plat, has remained
uninclosed since, and has been used by the public for years
for purposes connected with the business of the railway with-
out objection on the part of Morgan, and no taxes have ever
been paid on it.
There being no express grant, the evidence of a dedication,
if any, must be found in the acts and declarations of the de-
fendant.
There are none such tending to show a dedication to be
found since the making of the map, except acquiescence in the
use by the public of the vacant and uniaclosed portion of the
ground, which Morgan had not occasion to make use of him-
self, whicli is far from being any satisfactory evidence of an
intention to dedicate. Warren v. The President, etc. of the
Town of Jacksonville, 15 111. 236 ; Kelly v. City of Chicago, 48
111. 389.
Indeed, the manner in which the land has been used since
the making of the map, disproves the idea of a dedication.
In 1857, the defendant himself erected a corn crib across
the entire width of the strip in question, and has since been
in the occupation of portions of both strips, both personally
and by his tenants, to the exclusion of the public, and claim-
ing to be the owner of the portions so occupied, as also of the
residue of the ground. Since that time, a large portion of
the east strip has been continuously occupied by individuals,
to the exclusion of the public, without complaint from any
92 McAVilliams et al v. Morgan, Jr. [Sept, T.,
Opinion of the Court.
one, so far as appears, except the defendant himself. The
strip of land on the west side has, the greater part of it, been
exclusively occupied by the railroad company. It is the map
or plat alone which must be relied upon as any proof of dedi-
cation.
The counsel for the appellee does not deny the proposition,
that, where the owner of land causes it to be mapped out into
lots, streets, etc., and conveys lots pursuant to such map, he is
estopped from denying that he has dedicated to the public the
lands marked out on the map as intended for public use. And
the only question is, whether this piece of land, marked out
as it was upon the map, not sub-divided into lots, having
"depot" marked upon it, is designated on the map as devoted
to the public use.
The defendant testifies that he made the plat of the town
of Dwight, and reserved the two strips of land in question
with a view to selling them to the railroad company for a nom-
inal sum, for the enlargement of their depot grounds, when
they should have performed the covenants in the deed of the
one hundred feet for the right of way, and intended them to
remain open for general depot uses, in anticipation of that
event.
It might fairly be claimed, then, that the plat designated
this as depot grounds, and nothing more; but that is a private,
and not a public, use. Depot grounds are the subject of pri-
vate ownership — the public could not reasonably expect to
claim any right in them, however it might be with the railway
company.
These complainants insist that, because this piece of ground
was marked out and designated as it was upon the plat, they pur-
chased their lots in front of it, on the east side of East street,
on the faith that the ground should always remain for the free
use and enjoyment of the public, open ground and unincum-
bered with any buildings; and that the erection of this build-
ing by the defendant will be a disappointment of their expect-
ations, raised by the defendant's own acts.
1871.] McWilliams et al. v. Morgan, Jr. 93
Opinion of the Court.
But the representation made by the map to the public was
nothing more than that the ground was to be the site of the
depot, which was kept good ; that did not imply that it was
to remain an open common. It would have been entirely
cpmpatible with the use of the ground for depot purposes, had
the railway company covered it over with structures for the
uses of its road, and shut oif all passage over it by the public.
Had the intention been, as the complainants claim, that the
ground should remain open for public use, it would naturally
have been so indicated on the plat, by its not showing any
street line between the west line of complainant's lots and the
railway track, or its right of way ground. But all along the
east side of this strip is marked the line of a street, showing
a street of a certain width between complainant's lots and this
ground, indicating that the west line of that street w^as the
boundary on the west of the ground designed for public use,
and that the land beyond, on the west side of it, and marked
as separated from it by the line of the street, was not designed
for public use.
Moreover, accompanying the plat was the instrument in
writing of the defendant, declaring that he had laid off the
land into blocks, lots, etc., as exhibited on the plat, which
contains these words: " And the streets and alleys as therein
described are hereby donated to the public."
Here is the explicit declaration in writing of the defendant
of just what he did dedicate to the public ; and under the ap-
plication of the familiar maxim, expressio unius est exclusio al-
terius, such declaration impliedly negatives the idea of dedi-
cating to the public anything else.
AVe fail to discover from the map, as wTell as otherwise, the
manifestation of an intention on the part of the defendant to
set apart this ground for the use of the public ; and we per-
ceive no sufficient reason why the defendant should not be
allowed to make use of his own ground in proceeding to erect
a building upon it or otherwise, without being enjoined from
so doing by these complainants.
The decree is affirmed. Decree affirmed.
94 Peaslee v. Glass. [Sept. T.,
Syllabus. Opinion of the Court.
Henry L. Peaslee
v.
Henry Glass.
Evidence— weight of — new trial. Although a judgment might not be
reversed where the verdict is based upon the evidence of a plaintiff con-
tradicted by the defendant, and neither supported by other testimony, yet
the court will reverse when the verdict rests alone on the testimony of the
plaintiff and he is positively contradicted by the defendant who is corrob-
orated by an unimpeached witness. Such a verdict can not be sustained.
To sustain his verdict the plaintiff must have made out his case by proof.
Appeal from the Superior Court of Cook county ; the
Hon. Joseph E. Gary, Judge, presiding.
Mr. Ira W. Buell, for the appellant.
Mr. Francis A. Hoffman, for the appellee.
Mr. Chief Justice Lawrence delivered the opinion of the
Court :
This was an action brought by Glass against Peaslee for
injury done to the former, in his business as a barber, by un-
necessarily turning off the water from the premises occupied
by him. It appears Glass rented a basement room in a build-
ing belonging to Loomis, as a barber shop. Loomis went to
Europe, leaving Peaslee as his general agent. There was,
however, a janitor who had especial charge of the building,
and had had for several years, and it is insisted thpt the wa-
ter, whether rightfully or wrongfully turned off, was turned
off by him under the general directions of Loomis previously
given to him, and not by the directions of Peaslee.
The only evidence to charge Peaslee is that of the plaintiff,
who swears that, in a conversation in which he was complain-
ing to Peaslee, the latter admitted the water had been turned
off by his direction. We say the only evidence, because the
1871.] Peaslee v. Glass. 95
Opinion of the Court.
young man in the employ of Glass, who testifies to a conver-
sation had by him with Peaslee, testifies both that Peaslee did
and did not admit this, and no weight can be attached to his
testimony on this point.
On the other hand, Peaslee swears that he never gave any
directions to have the water turned off, and the janitor testi-
fies he never received any such directions from Peaslee, but
acted under directions received from Loomis in former years,
the pipes having burst and given trouble in former winters.
We are obliged to say this verdict is plainly against the
weight of the evidence. There are very few cases in which a
jury should find a verdict for the plaintiff upon his unsup-
ported testimony alone, when that testimony is positively con-
tradicted by the defendant. It belongs to the plaintiff to
make out a case. The burden of proof is upon him, and where
the issue rests upon the sworn affirmation of one party and the
sworn denial of the other, both having the same means of in-
formation and both unimpeached, and testifying to a state of
facts equally probable, a conscientious jury can only say that
the plaintiff has failed to establish his claim. Without say-
ing that this court would set aside a verdict for the plaintiff,
rendered in such cases, on the ground alone that it was not
sustained by the evidence, we must set aside one resting only
upon the evidence of the plaintiff when that is contradicted
not only by the defendant but also by another witness, and
there are no elements of probability to turn the scale. Such is
the present case.
It is not denied that the defendant, after the water was
turned off, refused to interfere and cause it to be turned on
again. For that, however, he can not be made personally
responsible. If this act of omission worked a wrong to the
plaintiff, Loomis, the principal, must answer for the conse-
quences. This is admitted by appellee's counsel.
The case must be sent to another jury.
Judgment reversed. -
96 Cooper et al. v. Town of Delavan. [Sept. T.,
Syllabus. Statement of the case.
Jonathan K. Cooper et al.
v.
The Town of Delavan.
1. Town supervisor — authority of to employ counsel to defend suits
against the town. The 4th section of article 12 of the act of 20th of Febru-
ary, 1861, entitled "An act to reduce the act to provide for township or-
ganization, and the several acts amendatory thereof, into one act, and to
amend the same," provides that, "in all legal proceedings against the town,
by name, the first process, and all other proceedings required to be served,
shall be served on the supervisor of the town. And whenever any suit or
proceeding shall be commenced, it shall be the duty of the supervisor to
attend to the defense thereof, and to lay before the electors of the town, at
the first town meeting, a full statement of such suit or proceeding for their
direction in regard to the defense thereof:" Held, under the provisions
of such section, the town supervisor has authority to employ an attorney
to defend a suit against the town, and the town will be liable to pay for
the services thereof a reasonable compensation.
2. It is still the duty of the supervisor, although he may employ coun-
sel, to call a town meeting and lay the whole case before the voters with
the legal advice he may have received, for their direction.
3. And at such a meeting the voters may, if they choose, dispense with
or continue the services of the attorney, the town still remaining liable to
pay a reasonable compensation to the attorney for the services already
rendered.
4. But the neglect of duty on the part of the supervisor to take steps
to call such meeting, or a refusal of the officers and voters to call the meet-
ing, should not prejudice the attorney.
Appeal from the Circuit Court of Tazewell county; the
Hon. Charles Turner, Judge, presiding.
This was an action of assumpsit, brought by Jonathan K.
Cooper and William L. Moss, partners, doing business under
the firm name of Cooper & Moss, against the town of Delavan,
in Tazewell county, to recover for legal services and for
money by them paid out for the use of the defendant, in de-
fending a suit in the circuit court of Tazewell county, and in
1871.] Cooper et al. v. Town of Dela van. 97
Opinion of the Court.
the Supreme Court of this State, being the suit of Phillips et al.
v. Drake and said town of Delavan, for an injunction to stay
the collection of taxes assessed by the town. The plaintiffs
claim to have been employed by James H. McKinstry, the
then acting supervisor of the town of Delavan, to defend for
said town in said injunction suit, both in the circuit court of
Tazewell county and in this court.
Judgment was rendered in the court below in favor of the
defendant, to reverse which the plaintiffs appeal.
Messrs. Koberts & Green, for the appellants.
Mr. J. B. Eice, for the appellee.
Mr. Justice Walker delivered the opinion of the Court :
The question presented by this record is, whether the town-
ship supervisor has legal authority to employ counsel to de-
fend the township when sued. The 4th section of article 12,
Gross' Com. p. 755, declares that, "in all legal proceedings
against the town, by name, the first process, and all other
proceedings required to be served, shall be served on the su-
pervisor of the town. And whenever any suit or proceeding
shall be commenced, it shall be the duty of the supervisor to
attend to the defense thereof, and lay before the electors of
the town, at the first town meeting, a full statement of such
suit or proceeding, for their direction as to the defense there-
of." The second clause of this section, in clear and unambig-
uous terms, imposes the duty of attending to the defense of
any suit or legal proceeding against the town, upon the super-
visor. It is true, it does not, in express language, author-
ize that officer to employ counsel, but it is manifestly implied.
In fact, no other reasonable construction can be given the
clause.
The process is served upon the supervisor and he is required
to attend to the defense. How, it may be asked, can he at-
tend to the defense when the services of an attorney may be
7 — 6 1st III.
98 Cooper et al. r. Town of Delavan. [Sept. T.,
Opinion of the Court.
required, unless he may employ legal advice? To hold that
the supervisor has no such power, would be attended with
inconvenience, delay, and would, in many cases, operate in-
iuriouslv. If it were necessarv that a town meeting should
be called, in suits before a justice of the peace, sufficient time
for the purpose would seldom intervene, as the officers of the
town would have, first, to agree that such a meeting was
necessary, the requisite petition would have to be filed, and
ten days' notice of the time, place, etc., given. In the circuit
court, however, no trial can be had at the first term unless
there has been service at least thirty days before the term, or
by consent. But cases may occur in which suits must be
brought by the town without delay, and when the calling of a
town meeting would be impracticable. These considerations,
independent of the imposition of the duty of attending to the
defense by the supervisor, would warrant the inference that
the supervisor might employ counsel from the mere fact that
process is served on him.
We have no doubt that the supervisor has, under the stat-
ute, power to employ an attorney to defend a suit against the
town, and it will be liable therefor to pay a reasonable com-
pensation. It is, no doubt, the duty of the supervisor, al-
though he may employ counsel, to still call a town meeting
and lay the whole case before the voters, with the legal advice
he may have received, for their direction. At such a meeting
the voters may, no doubt, dispense with or continue the ser-
vices of the attorney, as they may choose, the town still being
liable to the attorney to pay a reasonable compensation for
the services already rendered. But the neglect of duty on the
part of the supervisor to take steps to call the meeting, or a
refusal of the officers and voters to call such a meeting, should
not prejudice the attorney. This defense seems to be an un-
gracious one, if the citizens stood by and saw the attorney
attending to their case and took no steps to warn him that
they no longer wanted his services. The court below erred in
1871.] Force & Co. v. Town of Batavia. 99
Syllabus.
instructing the jury that the supervisor had no power to em-
ploy an attorney, and that the town was not liable unless it
ratified the act. It was also error to reject the evidence that
the supervisor employed appellants. For these errors the
judgment of the court below is reversed and the cause re-
manded.
Judgment reversed.
Charles H. Force & Co.
V.
The Town of Batavia, in Kane County.
1. Subscription to railroads by municipal corporations, and Uie
issue of bonds tlierefor — of the election by a township under the special act of
February 18, 1857, by whom it must be called. The act of February 18, 1857,
authorizing any city, county, incorporated town, or any township organ-
ized under the township organization laws, situated on or near the route
of certain designated railroads, to become subscribers to the stock of such
roads, and to issue their bonds for the amount of the stock so subscribed, pro-
vides that, upon the application of any fifty voters of any such city, town,
etc., specifying the amount to be subscribed and the conditions of the sub-
scription, it shall be the duty of the clerk of such citj-, town, etc., to call
an election in the same manner that other elections for said city, town, etc.,
are called, for the purpose of determining whether such city, count)", etc.,
will subscribe to the stock of such road, etc., and if a majority of the votes
shall be for subscription, it authorizes the proper authorities to cause such
subscription to be made and the bonds therefor to be issued : Held, that an
election, under the provisions of this act, by a township, to determine
whether it would make such a subscription, called by the town supervi-
sor, was void, and the vote therefor, although in favor of subscription, con-
ferred no power on the county authorities to issue the bonds therefor. The
town clerk, and he only, could legally call such election.
2. Nor would the eighth section of article four of the act of 1861, in re-
lation to township organization, which authorizes the supervisor to call
special town meetings in the absence of the clerk, have the effect, if such
contingency happened, to render valid such an election so called by the su-
pervisor. The act authorizing the subscription being a special act, the
100 Force & Co. v. Town of Bat a via. [Sept. T.,
Opinion of the Court.
proceedings under it must be in conformity with its provisions, and the
provisions of the township organization act have no application to such a
case.
3. It has also been held, in similar cases, where subscriptions were made
and the bonds issued, but the election was called by a wrong authority,
that the bonds, though in the hands of innocent holders, were absolutely
void.
Appeal from the Circuit Court of Kane county; the Hon.
Silvanus Wilcox, Judge, presiding.
Mr. B. C. Cook, for the appellants.
Mr. W. B. Plato, Mr. J. O. McClellan, and Mr. S. W,
Brown, for the appellee.
Mr. Justice Bkeese delivered the opinion of the Court :
This was a bill in equity on the chancery side of the circuit
court of Kane county, to enjoin the delivery of certain bonds
alleged to have been voted by the town of Batavia, in aid of
the construction of the Ottawa, Oswego & Fox River Valley
Railroad, and deposited with Bishop & Coulter, bankers in
the town of Batavia, the bonds being claimed by appellants
as earned by them in the construction of this road through
that town.
The circuit court decreed as prayed for by the bill, and made
the injunction perpetual.
To reverse this decree, the defendants have appealed to this
court, and have assigned as errors, admitting improper evidence
offered by appellee, excluding competent evidence offered by
appellants, and in rendering the decree in favor of appellee.
We have confined our attention to one point only, in this
case, the decision of which determines the whole controversy.
It is the fifth point made by appellants, and the first made by
appellee, namely, that the election was not ordered by a per-
son having authority.
1871.] Force & Co. v. Town of Batavia. 101
Opinion of the Court.
The act of the general assembly, under which the election
for subscription was held, is as follows :
" Any city, county, incorporated town, or any township now
or hereafter organized under the township organization laws,
which may be situated on or near the route of the Ottawa,
Oswego & Fox River Railroad, or of the Chicago, Amboy &
Upper Mississippi Railroad, or of the Joliet and Mendota di-
vision of the Joliet & Terre Haute Railroad, as the same may
have heretofore, or may hereafter be surveyed and located,
may become subscribers to the stock of any such road, and
may issue bonds for the amount of such stock so subscribed,
with coupons for interest thereto attached, under such limita-
tions and restrictions, and on such conditions as they may
choose and the directors of said company may approve, the
proposition for said subscription having first been submitted
to the inhabitants of such city, town, county or township, and
approved by them. And upon application of any fifty voters
of any city, toAvn, county or township, as aforesaid, specifying
the amount to be subscribed, and the conditions of said sub-
scription, it shall be the duty of the clerk of such city, town,
county or township, immediately to call an election in the same
manner that other elections for said city, town, county or
township are called, for the purpose of determining whether
said city, county, township or town will subscribe to the stock
of said road ; and if a majority of said votes shall be ' for
subscription/ then the county court or board of supervisors hav-
ing jurisdiction over county matters in said county, or the cor-
porate authorities of said city or town, or the supervisors and
town clerk of such township so voting, shall cause said sub-
scription to be made ; and upon its acceptance by the directors
of said company, shall cause bonds to be issued in conformity
with said vote, which bonds shall in no case bear a higher
rate of interest than ten per cent per annum, and shall not be
of a less denomination than one thousand dollars, and shall
be accepted by said company at their par value."
102 Force & Co. v. Town of Batavia. [Sept. T.,
Opinion of the Court.
It will be perceived by this act that, on the application of
any fifty voters of any city, town, county or township, speci-
fying the amount to be subscribed, and the conditions of the
subscription, the clerk of such city, town, county or town-
ship, and he only, can call the election. This is fundamental,
and if this direction of the law has not been observed, we
must hold, in conformity with previous rulings of this court,
that the election was void and conferred no power to make
the subscription and to issue bonds therefor.
The first case decided by this court bearing upon this point
is, Supervisors of Schuyler county v. The People, ex rel. R. I. &
Alton R. R. Co., 25 111. 182, and the same appellants v. Cliarles
Farwell, ibid.
The first was an application for a mandamus to compel ap-
pellants to issue and deliver to the relators bonds of the county
to the amount of sixteen thousand dollars, in payment of an
alleged subscription of that county to the stock of the relators.
The alternative writ alleged the charter and organization of
the company, and an order of the board of supervisors of the
county directing an election to be held, and that at the elec-
tion a majority of the voters voting on the question voted in
favor of the subscription of seventy-five thousand dollars to
the stock of the company, which was subscribed by the chair-
man of the board, and bonds to the amount of fifty-nine thous-
and dollars actually issued and delivered.
The county made return to the writ, setting up, among other
things, that the board of supervisors had no authority to cause
an election to be held, or to make the subscription, or to issue
the bonds; that the county court never acted in the premises,
and that the county is not bound to issue bonds.
The act .authorizing the subscription provided that the
county court of each county through which the road was pro-
posed to run, might subscribe for stock and become stockhold-
ers, and for that purpose to issue bonds; and the county court
of such counties was required to order an election, that a vote
might be taken for or against subscription.
1871.] Force & Co. v. Town of Batavta. 103
Opinion of the Court.
By an amendment to this act, the county courts of Scott,
Schuyler, McDonough and Warren counties, were authorized
and directed to issue bonds in payment of all stock subscribed,
and to levy a special tax to meet the interest accruing on such
bonds.
All these acts were performed by the board of supervisors
of Schuyler county, the county court taking no part in them ;
and although they had issued fifty-nine thousand dollars of
bonds on their subscription of seventy-five thousand dollars,
this court refused a mandamus to compel the issuing of the re-
maining sixteen thousand dollars, the court holding that the
acts of the board of supervisors were not binding on the
county, they having done what the law required the county
court to do. The court said: "These bonds were executed by
the board of supervisors without the least shadow of authority.
As well might the sheriff of the county or the circuit court
have undertaken to perform these acts and execute these bonds
as this board of supervisors. There was a total want of
authority, and the acts were consequently void."
In FarwelPs case, he held thirty-six coupons attached to
these bonds, of thirty-five dollars each, and he was denied a
recovery, on the grounds stated, that the acts of the board
were without authority. The election had been called, not
by the power to whom authority was given, but by another
and different power, and it was therefore void.
In this case, power was given to the town clerk, and to him
alone, on the petition of fifty voters, to call an election. The
supervisor of the town called the election, which, upon the
authority of the above cited case, was wholly void. There
was no warrant of law for an election thus ordered.
In Clarke v. The Board of Supervisors of Hancock County,
27 ib. 305, it was held, if an election Avas held without war-
rant of law, or if it was ordered by a person or tribunal hav-
ing no authority, there can be no doubt that the whole pro-
ceeding would be absolutely void. Such an election, and
104 Force & Co. v. Town of Batavta. [Sept. T.,
Opinion of the Court.
every subsequent step, would be unauthorized and void, and
therefore incapable of ratification by the county authorities.
In Supervisors of Marshall County v. Cook, 38 ib. 44, which
was an action to recover interest due by a coupon attached to
a bond issued by the board of supervisors of Marshall county
in payment of subscription to stock in a railroad company, a
recovery was defeated on the ground that the election was
called by the wrong authority, and the bonds issued thereunder
were absolutely void. The fact that a majority of the votes
at such an election was in favor of the subscription would not
relieve it of its illegality. Majorities were as powerless to di-
vest a person of his property as are minorities. That can be
done by neither, except in the manner prescribed by law. The
election being called without authority, the vote would confer
no power.
These cases hold, when an election of this character is not
ordered by the proper authority, the vote would confer no
power to issue bonds. In these cases, bonds had been issued,
and in FarwelPs case had passed into the hands of an inno-
cent holder, yet the court held, as the election was ordered by
the wrong authority, all the proceedings under it were abso-
lutely void, and an innocent holder could have no advantage
from such a position.
These being the views entertained by this court in cases ap-
pealing most strongly to a liberal judgment on the facts, then
in this case, where the bonds have not been put in circulation,
and innocent holders can not suffer, we must hold that the
election, having been called by the town supervisor, and not
by the town clerk, the vote at such election conferred no power
on the county authorities to issue the bonds in question.
It is, however, urged by appellants, that the town super-
visor was the proper official to give the notice. How this can
be seriously urged, in view of the plain direction of the stat-
ute, we do not understand. It is said the law required the
town meeting to be called in the same manner that other town
meetings are called, and by section 8 of article 4 of the act of
1871.] Force & Co. v. Town of Batavia. 105
Opinion of the Court.
1861, in relation to township organization, the supervisor is
authorized to call special town meetings, in the absence of the
clerk.
This, manifestly, was not a special town meeting under the
section referred to, for the requirement of that section is, that
the notices shall be posted up in five of the most public places
in the town. The notice actually posted in this case was in
three of the most public places#in the town. This, then, was
not a special town meeting, but a notice of an election.
But if it was a special town meeting, the supervisor could
only act in the absence of the town clerk.
Crandon, in his cross-examination, says, when he signed
Moss' name to the notice, he thinks the town clerk was in the
bank at Batavia, and said he could not leave the bank. So
the contingency had not happened in which the town super-
visor could give the notice. This act authorizing subscrip-
tions to this road was a special act, and the proceedings under
it must be in conformity to its provisions, and we do not think
the provisions of the township organization act have any ap-
plication to this case. Wiley v. Town of Brimfield, 59 111. 306.
The election having been called by an unauthorized person,
that, and its results, are void and of no effect. Neither has
any greater validity than the unauthorized action of a mass
meeting would have.
Appellants well knew, or might have known, the election
was illegally called, and could have governed themselves ac-
cordingly.
The decree of the circuit court making the injunction per-
petual, must be affirmed.
Decree affirmed.
106 McLean v. Farden et aL [Sept. T.,
Syllabus. Statement of the case.
George W. McLean
v.
Ralph Farden et ah
1. Possession — wliat constitutes. Entering upon land, partial fencing
and slight cultivation, cutting timber, and exercising continuous public
acts of ownership, constitute actual possession which the courts will pro-
tect.
2. Same — paramount title. Such possession may be maintained in an.
action of trespass quare clausum f regit against a part}- intruding without par-
amount title. In the absence of title on either side, priority of possession
prevails.
3. Legal possession — when not necessary. Legal possession, as strictly
defined, is not necessary to a party in actual possession, even though
wrongfully acquired, to constitute a defense against a mere intruder not
having a better title.
4. Same. The person having the actual possession will be deemed the
true owner until the contrary is made to appear. Whoever would dispute
that possessory right, can only do so by exhibiting paramount title.
Appeal from the Circuit Court of Peoria county; the Hon.
Sabln D. Puterbaugh, Judge, presiding.
This was an action of trespass quare clausum f regit, upon the
southeast quarter of the northeast quarter of section 14, town-
ship 11 north, range 8 east, in Peoria county, brought before
a magistrate, resulting in a judgment for the plaintiff, from
which the defendant took an appeal to the circuit court. Up-
on trial in that court the verdict went for the original de-
fendant. The motion of McLean for a new trial wras over-
ruled, and judgment entered against him for costs, from which
judgment he appeals to this court.
It appears that McLean purchased the tract of one Daven-
port, on December 11, 1867, giving notes and receiving a
bond for a deed, the land being then vacant and unoccupied.
On the day after the purchase he set four posts ; about a year
after, he nailed poles to these posts, and in the spring of 1869
set out a few fruit trees and burned off the underbrush from
1871.] McLean v. Farden et al. 107
Opinion of the Court.
nearly the whole tract. In the spring and summer of 1870
he made fences, grubbed and cleared, inclosed a field, raised a
crop, etc. He continuously, from the time of purchase, took
his firewood from the land, and claimed ownership by keep-
ing watch of it, warning off trespassers, etc.
On the other hand, it appears that the appellees, on the 2d
of May, 1870, caused four posts to be set upon the land, which
were, soon afterwards, taken up by appellant and used in
his fence upon the same land ; and that, about September 12,
1870, appellees cleared away trees and shrubbery and erected
a small house upon the lands. There is mention in the pa-
pers, but no evidence, that appellees had a deed for the land.
Messrs. Cooper & Moss for the appellant.
Messrs. O'Brien & Harmon, for the appellees.
Mr. Justice Scott delivered the opinion of the Court :
The appellant, and Mrs. Susan Farden, under whom the
appellees seek to justify their acts, both claim to own the
land in controversy on which the alleged trespasses were com-
mitted.
It is not denied that the appellees did enter upon the prem-
ises and cut some trees, and did other acts to the realty for
which the appellant could rightfully recover if he had been
previously in the actual possession. The only question pre-
sented is, whether the appellant did have the requisite posses-
sion of the tract of land in dispute prior to the committing the
acts complained of, that would enable him to maintain tres-
pass for injuries to the realty.
The disputed facts in the record are upon this point, but
we regard the evidence as greatly preponderating in favor of
the possession of the appellant, so much so, at least, that we
are of opinion that a new trial should be awarded and the
cause submitted to another jury.
Neither party introduced, or made proof of, paramount title,
but the object of the paper title offered in evidence was to
show the extent of the possession claimed.
108 McLean v. Fakden et al [Sept. T.,
Opinion of the Court.
The land is timbered land, and was never all inclosed by
the appellant or any one else. It lies near the home farm of
the appellant. In aid of the acts relied on to constitute pos-
session, and for the purpose of showing good faith and the
extent of his possession, the appellant offered in evidence a
bond for a deed to the premises, executed to him by Daven-
port in the year 1867. From the time of receiving this bond
the evidence does show that the appellant cut timber off the
premises for the purposes of fuel, and did other acts mani-
festing an intention to assert dominion over the entire tract
of land, such as warning off trespassers and claiming it as his
own.
At what date the appellant made the first improvements on
the land, is involved in some doubt, and there is very serious
conflict in the evidence on this point. In view of the evi-
dence, it can not be gainsaid that the appellant did have some
improvements on the land prior to the date the appellees en-
tered on it, which had attracted the attention of parties resid-
ing in the immediate vicinity. The appellee, Ralph Farden,
the husband of Mrs. Farden, under whom the appellees at-
tempt to justify, admits in his testimony that he knew, before
he and the other appellees went upon the land, that the im-
provements on it had been made by the appellant, for "such
was the general talk."
The improvements were not of an extensive or very valua-
ble character, but, nevertheless, they were such as would man-
ifest an intention to reduce the land to possession for the pur-
pose of actual and permanent occupation. And this is all that
is required to constitute possession. It is not necessary that
a party should have his land all inclosed with a fence before
he can be said to be in actual possession. Any class of im-
provements or acts of dominion that indicate to persons resid-
ing in the immediate neighborhood who has the exclusive con-
trol of the land, will be deemed to constitute possession to the
extent of the paper title under which such party entered, so as
to enable him to maintain trespass for any injury to the estate.
1871.] McLean v. Farden et al 109
Opinion of tlie Court.
It will be found to be difficult to. state any general rule as to
what character of improvements or acts will be sufficient for
this purpose. Every case must rest on its own facts. It has
been held that the constant and uninterrupted use of timbered
land through a series of years for the purpose of procuring
wood therefrom for fuel, fences and other uses, will be suffi-
cient to constitute actual possession so as to enable a party to
maintain trespass for any encroachment upon it. Davis v.
Easley, 13 111. 192; Brooks v. Bruyn, 18 111. 539; Same v.
Same, 24 111. 372.
In the case at bar, the appellant undoubtedly used the dis-
puted tract of land for the purpose of procuring therefrom his
fuel from the time he purchased it, and openly maintained his
right so to do by warning off trespassers and claiming it as
his own. It is certainly established, by a clear preponder-
ance of the evidence, that the improvements made by the ap-
pellant were placed on the land prior to the entry made by
the appellees. The attention of a number of witnesses was
ealled to the improvements sometime prior to the committing
of the injuries complained of.
It is apparent that it was the purpose of Mrs. Farden,
through the instrumentality of the appellees, to invade and
wrest from appellant the possession with which to defend her
supposed title to the land. This, the law will not permit her
to do. Whatever title she may have had, she ought to assert
in the courts.
If the appellant was in possession, as the evidence tends
most strongly to show, he was entitled to hold the land as
against all the world, except the party holding the paramount
title. So far as this record shows, Mrs. Farden did not claim
to have the paramount title.
In this view, the first instruction given for the appellees
does not state the law accurately. By it, the jury were in-
structed in substance that, unless the appellant had the "legal
possession," the law was for the appellees. This was error.
It is immaterial, under the facts in this record, whether the
110 Gibbons r. Buessler. [Sept. T.,
Syllabus.
possession of the appellant was legal or illegal. The appellees
did not pretend to justify their acts under any one who
claimed to have the paramount title. A party in possession,
no matter how acquired, is entitled to maintain it against any
mere intruder or wrong doer. The person that hath the act-
ual possession of land will be deemed, and held to be, the
true owner, until the contrary is made to appear. Whoever
would dispute that possessory right, can only do so by exhib-
iting paramount title.
For the reasons given, the judgment is reversed and the
cause remanded.
Judgment reversed.
Jacob Gibbons
V.
Peter Bressler.
1. Equity — setting aside a sale on attachment— for fraud. If a person,
knowing another is not indebted to him", makes a false affidavit, procures
a writ of attachment, has it levied on lands of the defendant, obtains a
judgment and execution, buys in the land and obtains a sheriff's deed, a
court of equity will set aside the sale on such facts being made to appear,
on the ground of a fraudulent abuse of the process of the court.
2. Written instrument — parol evidence to vary. A part}' can no
more vary the terms of a written agreement by parol in a court of equity
than in a court of law. Verbal understandings can not be proved for such
purpose.
3. Judgment in attachment — sale of property — satisfaction. What-
ever may be the legal effect of a judgment in attachment on constructive
notice, a sale of property thereunder, for only a portion of the debt, can
not be treated as a satisfaction of the claim upon which the judgment is
based, beyond the amount of the sale.
4. Jurisdiction — in attachment. An affidavit filed, a bond given, an
attachment issued and levied, publication made and proof thereof, con-
fer jurisdiction upon the court; and although the court may have erred
in applying the law to the facts, still the judgment is not void.
1871.] Gibbons v. Bressler. Ill
Opinion of the Court.
5. Equity. Where a judgment is not void, but only erroneous, a court
of equity will not set it aside, although it might be reversed on error.
It is not the province of a court of equity to correct errors of courts of
law.
6. Sale — inadequacy of price. Where there is no proof that a sher-
iff's sale was not conducted fairly, and the property sold had no definite
market value, a court of equity will not set aside the sale, for inadequacy
of price.
Appeal from the Circuit Court of Whiteside county; the
Hon. William W. Heaton, Judge, presiding.
Messrs. Dinsmoor & Stager, for the appellant.
Mr. C. J. Johnson, for the appellee.
Mr. Justice McAllister delivered the opinion of the
Court :
This was a bill in equity, exhibited in the Whiteside circuit
court by Gibbons, against Bressler, to remove a cloud alleged
to have been cast upon the title of the former to certain lands
situate in that county, and described in the bill, by means of
the sale thereof by the sheriff, upon a special execution issued
on a judgment in a suit by foreign attachment, instituted by
Bressler in that court against the estate of Gibbons, at which
sale Bressler became the purchaser, and afterwards obtained a
sheriff's deed, the judgment, as it is alleged, having been ob-
tained by fraud. There was an answer filed by Bressler,
denying all the allegations of fraud. Upon issues formed by
replication, proofs were taken and the cause heard upon plead-
ings and proofs. The court below entered a decree dismissing
the bill, from which an appeal was taken to this court.
The fraud alleged is predicated upon the non-existence of
any indebtedness from Gibbons to Bressler at the time the
attachment suit was commenced, and certain irregularities in
the proceedings in the cause, and inadequacy of price at the
sale.
We are satisfied, after a critical examination of this record,
that the evidence fails to sustain the bill.
112 Gibbons v. Bressler. [Sept. T.,
Opinion of the Court.
If it had been shown that Bressler had sued out the writ of
attachment and had it levied upon Gibbons' lands by means
of a false affidavit, and when he knew that he had no just
claim of indebtedness against Gibbons, fraud would have
been established, and a court of equity would interfere to
undo what had been done under such proceedings, and pre-
vent him who had perverted the process of the laAV to such
fraudulent purposes, from reaping the fruits of his fraud.
Instead of the suit having been commenced without proba-
ble cause, or with knowledge of a want of any just claim,
Bressler held against Gibbons the following instrument :
"On or before the 1st day of March, 1861, I promise to pay
to the order of Peter Bressler $348, with interest at the rate
of six per cent per annum, from date, according to the tenor
and effect of the note which 'the county of Whiteside and
State of Illinois holds against the said Peter Bressler, for
swamp lands, or as much of said note as is secured by mort-
gage on a certain tract of land known and described as fol-
lows, to wit : the northwest quarter of section twenty-five
(25), in town nineteen (19) north, range six (6), east of the
4th P. M., containing one hundred and sixty acres, being and
lying in the said county of Whiteside and State of Illinois.
The consideration of the note being to the effect that the said
Bressler shall, as soon as may be, make and deliver to said
Gibbons a quit-claim deed for the above described land.
Joseph Gibbons."
Gibbons did not pretend to impeach this instrument for
fraud, but sought, by his evidence, to vary its terms by a
verbal understanding at the time it was made. This he can
no more do in equity than at law.
The attachment suit in question was commenced on the 2d
day of March, 1863. It appears that Bressler had, in Octo-
ber, 1862, obtained judgment by default in a former attach-
ment suit upon this instrument, for $404.55, besides costs ;
that a special execution was issued, and the same lands, or a
1871.] Gibbons v. Bressler. 113
Opinion of the Court.
portion of them, were solcUand bid off by Bressler for $40.00,
from which sale Gibbons redeemed.
Whatever may be the legal force and effect of a judgment
by default, upon constructive notice, in a foreign attachment
suit, it can not be maintained that the debt, on which the
judgment was rendered, is discharged by the sale of the prop-
erty attached for only a small portion of the amount found
due by the judgment.
In the second suit, judgment by default was rendered on
the 1st day of February, 1864, for $392.20. Special execu-
tion against the lands attached was issued, under which they
were sold by the sheriff. Bressler was the purchaser, and the
lands not having been redeemed within the fifteen months, he
obtained the sheriff's deed. This suit was begun by a foreign
attachment. An affidavit was filed in due time which appears
in the files. That affidavit describes the indebtedness upon a
judgment rendered at a specified term of the same court, in a
suit by attachment, specifying the amount. Bressler's attor-
ney obtained leave, before judgment, to file an amended affi-
davit. That does not appear in the files, nor does the bond,
but the writ of attachment recites the giving of a bond. Ex-
trinsic evidence was introduced that a bond was, in fact, filed
before the writ issued, also that an amended affidavit was filed
in pursuance of the leave given by the court. Notice of the
pendency of the suit was published and proof of it made,
in conformity to the statute. From what appears in the
record, we do not hesitate to hold that the court acquired
jurisdiction, and jurisdiction having been acquired, the judg-
ment can not be held void, though the court may have pro-
ceeded irregularly or erred in its application of the law to the
case before it.
At the time of instituting that suit, Bressler had a valid
and subsisting claim of indebtedness against Gibbons for the
amount remaining unsatisfied of the former judgment, or up-
on the instrument for the payment of money. Upon which
of them his remedy should be based, it is not necessary to
8— 61st III.
114 Gibbons v. Bressler. [Sept. T.,
Opinion of the Court.
decide, because the question is not what evidence he produced
before the court in the second attachment suit, but whether
he commenced that suit with knowledge that he had no sub-
sisting claim of indebtedness so that fraud is imputable. We
think he had a sufficient claim to protect him from that charge,
and it is not sustained by the evidence.
The other points for having the judgment and proceedings
under it held void, do not go to the jurisdiction of the court
but constitute mere irregularities, many of which are captious
and trivial. But if it be conceded that they amount to er-
rors, for which the judgment would have been reversed on
error brought, still they can afford no ground for relief in
equity. Courts of equity do not sit for the correction of er-
rors in causes at law. The court having obtained jurisdiction
in the attachment suit, mere irregularities would not oust the
jurisdiction and render the judgment void. In such case, the
party aggrieved by such irregularities must apply for redress
to the same court or resort to an appeal or writ of error. It is
not the province of a court of equity to correct this.
Nor is the alleged inadequacy of price sufficient to set aside
the sale. There is nothing in the record to show that the
sale was not conducted fairly and judiciously. The lands
were at that time swamp lands, and had no definite market
value. Greenup v. Stoker, 12 111. 24.
No error being apparent in the record, the decree of the
court below must be affirmed.
Decree affirmed.
1871.] Cook v. South Park Commissioners. 115
Syllabus. Statement of the case.
Amanda S. Cook
v.
South Park Commissioners.
1. Eminent Domain — right of, subject to constitutional limitation. The
right of the State to take private property for public uses can not be as-
serted by mere enactment. The constitution, providing that the citizen
shall not be deprived of property except by due process of law, or in con-
formity to the law of the land, requires a trial or judicial proceeding, and
a judgment.
2. Nor does a designation by metes and bounds, followed by a popular
vote of approval, a selection by commissioners, and a condemnation, upon
due proceedings, deprive the owner of his title or right of possession.
Without'payment of the damages awarded, the antecedent proceedings are
not effective. The last act must be performed before the law will regard
the land as taken or acquired.
3. Valuation — when ascertained. In assessing damages, the value at
the time of the condemnation should be considered, the owner being en-
titled to the benefit of an advance caused by the prospective establishment
of a public park.
4. Title — tenancy — rent. The commissioners not having acquired title
nor possession, no tenancy existed during the proceedings, to justify an
award of rent against the owner in possession.
5. Interest — delay. No interest accrues upon an award before judg-
ment, nor can a party causing or contributing to delay, have interest, until
entry of final judgment.
6. A judgment in a proceeding for the condemnation of private prop-
erty for public use, awarding damages, will bear interest, although no exe-
cution can be issued upon the judgment.
7. Verdict upon awards — execution — mandamus. The verdict upon an
award being special, no execution can issue upon it; but the property does
not pass until payment. Mandamus is necessary to compel the commis-
sioners to act.
Appeal from the Circuit Court of Cook county ; the Hon.
E. S. Williams, Chief Justice, presiding.
This was an appeal in the circuit court of Cook county,
by Mrs. Amanda S. Cook, from an award of commissioners
116 Cook v. South Park Commissioners. [Sept. T.,
Statement of the case.
appointed by that court, on the petition of the South Park
commissioners, in a proceeding for the condemnation, for park
purposes, of certain real estate belonging to her.
The proceedings were had under an act of the general as-
sembly of February 24, 1869.
The first section provided for the organization of the Board
of South Park Commissioners, which, by the terms of the act,
became a corporate body.
The fourth and second sections provide that * the said com-
missioners, by this act, are authorized and empowered to, and
they shall, within ninety days after their organization as afore-
said, or as soon thereafter as practicable, select the following
described lands situated in the towns of South Chicago, Hyde
Park and Lake, in Cook county, Illinois, to wit : [describing
the lands,] which said lands and premises, when acquired
as provided by this act, shall be held, managed," etc.
The fifth section provides that, in case of disagreement, con-
demnation may proceed under the Right of Way act of June
22, 1852.
The sixth section provides that, " when the title to the land
selected for such park, as herein provided, shall have been
acquired by said commissioners/' etc., they shall acknowledge
and record a plat.
Section eighteen provided for a popular election in the three
towns named, and that the act should take effect upon a ma-
jority vote in the affirmative — not otherwise.
In estimating the value of lands taken, and the amount of
damages, the benefits were also to be estimated.
On September 8, 1870, the commissioners appointed to make
the assessment filed their report, estimating the compensation
to be paid at $90,000. From this award Mrs. Cook appealed
to the circuit court, in which she had, January 16, 1871, judg-
ment for §114,347.18, as the total value, including interest.
Both parties took exception to the rulings and judgment of
the court, and respectively appealed to the Supreme Court.
1871.] Cook v. South Park Commissioners. 117
Opinion of the Court.
On the trial below, it was stipulated that Mrs. Cook was, at
the date of the passage of the law, and had been ever since,
the owner of the premises in fee.
The statement of the testimony offered upon the trial, and
the rulings of the court upon instructions asked by the parties,
are embodied in the opinion of the court.
Messrs. Scammon, McCagg & Fuller, for the appellant.
Messrs. Beckwith, Ayer & Kales, for the appellees.
Mr. Justice Thornton delivered the opinion of the Court :
The law which authorized the commissioners to acquire
lands to be held and controlled for a public park, described
the lands to be selected.
In determining the compensation to be paid to the owner of
the lands taken, the chief question is, at what time shall their
value be estimated ?
In behalf of the commissioners, it is assumed that the
proper time was when the law became operative, by ratifica-
tion by the voters ; that then the property wTas irrevocably ap-
propriated for public use; the owner was then divested of the
beneficial enjoyment of it; deprived of all right to convey or
improve it; and that nothing remained to be done but to as-
certain and pay the compensation.
The instructions given upon the trial assume that the land
was taken when the law Avent into operation, without any act,
on the part of the corporate authorities, to condemn it or to
acquire it in any other manner, and that it was devoted to
public use by the enactment.
On the part of appellant, it is contended that the legisla-
ture can not transfer the property of one man to another ; can
not donate it to public use by its own mere declaration.
The constitution provides that " no freeman shall be * *
* * in any manner deprived of his life, liberty or prop-
erty, but by the judgment of his peers or the law of the
land."
118 Cook v. South Paek Commissioners. [Sept. T.,
Opinion of the Court.
Mr. Webster, in his argument in the Dartmouth College
case, has given a very correct definition of the phrase, " the
law of the land/' when he said : " By 'the law of the land/ is
most clearly intended the general law, which hears before it
condemns, which proceeds upon inquiry, and renders judg-
ment only after trial. The meaning is, that every citizen shall
hold his life, liberty, property and immunities under the pro-
tection of the general rules which govern society. Every-
thing which may pass under the form of an enactment is not
the law of the land."
This section of the constitution had reference only to the
taking of the property of one and giving it to another. This
is not within the scope of legislative authority, either with or
without compensation. The citizen can only be deprived of
his property, and the title transferred to another, by a fair
trial and an adjudication, according to the course of the com-
mon law. There can be no forced divestiture, except by judg-
ment of law, when it is not taken for public use ; the legisla-
ture can not exercise judicial power, and therefore mere legis-
lation will not accomplish the transfer. Neioland v. Marsh,
19 111. 376; Taylor v. Porter, 4 Hill, 140; Ross v. Prior, 14
111. 171.
The act in question does not undertake to deprive one per-
son of property for the purpose of vesting it in another. It
merely empowers the commissioners to select certain described
lands, and then recites, "which said lands and premises, when
acquired by said commissioners, as provided by this act, shall be
held, managed and controlled * * * as a public park;
for the recreation, health and benefit of the public, and free
to all persons forever."
The following section provides that, if the commissioners
can not agree with the owners of the real estate " selected as
aforesaid," they may proceed to procure its condemnation, in
the manner prescribed in the act concerning right of way, ap-
proved June 22d, 1852.
1871.] Cook v. South Park Commissioners. 1 19
Opinion of the Court.
These provisions can not properly be construed as an irre-
vocable appropriation of the land, an absolute divestiture of
title, a positive prohibition upon any alienation or improve-
ment, a change of the estate from ownership in fee to a mere
tenancy at will. This would be a dangerous and unwarranted
exercise of power by the legislature.
The commissioners were authorized to " select." The term
implies choice. To choose signifies to take one thing rather
than another. When we select we choose. It is true, that
other lands than those designated could not be taken, because
it would have been in excess of the power, yet the commis-
sioners might have refused to select. The law conferred an
authority to be exercised, but not to be exercised at all haz-
ards, and without regard to results.
If the owners had insisted upon a most exorbitant price,
and the probabilities were against a fair price by condemna-
tion, the commissioners should be permitted to decline the
purchase. The legislature certainly never intended to force
the selection without regard to consequences.
The words, too, "when acquired as provided by this act/'
must have some meaning in determining the legislative intent.
To acquire, expresses progressive and permanent action. It
would be a solecism to say that a man must acquire an estate,
or a title, when the estate or title was complete in him.
The lands were to be held as a public park, when acquired
as provided. If no agreement could be made between the
commissioners and owners, then the lands were acquired by
condemnation.
The several provisions of the law under which the con-
demnation must be procured, are antagonistic to the position
that the land was taken by force of the South Park act.
Upon the filing of the petition, and notice given, commis-
sioners are to be appointed. They must hear the allegations
and testimony of the parties interested, and then fix the com-
pensation to be paid to the owners of "lands to be taken" for
the purposes specified in the act. They must view and inspect
120 Cook v. South Park Commissioners. [Sept, T.,
Opinion of the Court.
the premises. It would be a farce to inspect lands taken and
appropriated for more than one year prior to their appoint-
ment.
Again it is provided that, "the right and title" to the land
required shall vest in the corporation, upon the payment of
the compensation, and that the judgment shall be so entered,
"with the right to enter upon, use, and apply" the land.
Scates' Comp. 483, 485.
The language and plain intent of the statute are, that no
right to the land shall inure to the corporation until payment
of the compensation. It may be unnecessary to decide whether
payment must precede any use or possession of the land, but
the constitution, without reference to the law, requires, in the
taking of property for public use, by the State or a munici-
pality, that there must be some adequate source of compensa-
tion, and that the owner of the property shall be secure in the
payment. He can not merely be referred to a corporation of
doubtful responsibility, and a judgment which may prove to
be worthless.
But this question, as to the right of the commissioners to
take possession of the land in controversy, was determined in
the case of The People v. Williams, 51 111. 63. In that case,
where the same laws were under consideration, it was said
that the park commissioners can not occupy the land until the
damages assessed are paid, and tha% in no other mode can an
owner be deprived of his land through the exercise of the
power of eminent domain.
In regard to similar laws, it has always been the doctrine
of this court, that the damages must be paid before possession
of the land can be taken, or any right to it acquired. Chi. &
Mil. R. R. Co. v. Bull, 20 111. 218; Johnson v. Joliet & Clil
R. R. Co. 23 111. 203 ; Shute v. Chi. & Mil. R. R. Co. 26 111.
436.
The inhibition in the constitution is, "Nor shall any man's
property be taken or applied to public use without the consent
,1871.] Cook v. South Park Commissioners. 121
Opinion of the Court.
of his representatives in the general assembly, nor without
just compensation being made to him."
The counsel for appellees insist that the word "taken" is
not to be understood in its physical sense, because, under our
statute, the land can not be actually entered upon and applied
to public use until after the compensation has been ascertained
and paid. The reason given is certainly peculiar. It is, that
the constitution does not mean an actual taking, for the stat-
ute prohibits an actual entry until the payment of the com-
pensation. Even if the statute were in conflict with the con-
stitution, the latter must control as the supreme law. But it
is not. The statute provides that the title to the land, and the
right to enter upon and use it, must follow the payment of the
damages awarded.
The law which created the park commissioners, by virtue of
which alone they are constituted a corporate authority, refers
to and adopts the law of June 22d, 1852, as the one which
must govern the commissioners in acquiring title to the land,
and the possession of it.
This latter law requires that persons who may be appointed
commissioners to assess damages, shall inspect " the lands to
be taken," not the lands already taken.
In the construction of a law, we must consider every part,
ponder the effect of every word, to ascertain the intent of the
legislature. The law under consideration evidently construed
the words, "taken or applied to public use," in a physical
sense. When it required that compensation must precede any
possession, use or application of the land to the purpose in-
tended, what was meant? The taking of the land — the ap-
propriation of it — prior to the performance of the prerequisite
of the statute, would be utterly inconsistent with the obvious
meaning of the words of the law. If the land can not be en-
tered upon or used before payment of the compensation, it can
not, with any propriety of language, or with reference to the
common signification of the term, be said to be taken before
payment. This would be a distortion of the sense of the
122 Cook r. South PapwK Commissioners. [Sept. T.„
Opinion of the Court.
word. It can not, literally or metaphorically, have such
meaning, in connection with the statute.
We have been referred to authorities in Massachusetts, and
some in other States, in which the question as to the time when
property shall be deemed to be taken, is discussed. These
decisions were made with reference to the peculiar phraseology
of statutes which differ somewhat from our own.
The statute of Massachusetts required that railroad corpor-
ations should file a certificate of the location of the road,
within a limited period.
In the construction given to the statute there is some slight
discrepancy.
In some cases it has been decided that the filing of the loca-
tion should be considered the taking of the land, and conclu-
sive upon the corporation and land owner. Boston & Prov.
R. R. Co. v. Midland R. R. Co. 1 Gray, 340; Hagen v. Boston
& Me. R. R. Co. 2 Gray, 574.
In other cases it was held that, as the company might never
file a location, the question, whether the filing was the only
act of taking, was a difficult one; and that the filing of a lo-
cation might be regarded as prima facie a taking, in the absence
of other proofs. Davidson v. Boston & Me. R. R. Co., 3 Cush.
91 ; Boynton v. Peterboro & Shirley R. R. Co., 4 Cush. 467.
These decisions do not aid us very much.
AVe think that the act for the location and maintenance of
the park, and the act to condemn lands for any public work,
when considered together, do not bear the construction that
the land of appellant was taken by the former act. If such
were the necessary construction, the law must be pronounced
a violation of the constitution. The legislature has not the
power, by mere declaration of law, to set apart the land of
the citizen, for the use of corporations, and divest the owner
of the right to sell and improve it. It can not, by arbitrary
enactment, take property for public use, and limit the owner's
right to recover compensation to the date of the law, when
1871.] Cook v. South Park Commissioners. 123
Opinion of the Court.
the property might greatly enhance in value between the pas-
sage of the law and the time when proceedings to condemn
are commenced.
We, therefore, think that the evidence excluded by the
court should have been admitted, and that the value of the
land should be estimated at the date of condemnation. This
would approximate more nearly to right and justice, and to
the time when the land is actually taken, as contemplated by
the law.
The judgment was entered in proper form, but it is in direct
conflict with instructions given by the court. The court in-
structed the jury that the owner of the land was liable for the
rental value for more than one year before the commencement
of the proceedings to condemn. The corporation had no right
to enter upon or use the premises until the compensation was
fixed and paid. There was neither right nor title in the cor-
poration prior to filing the petition. The title was in the
owner, as well as the right of occupancy.
Upon what principle of reason or law can the absolute
owner of lands, in possession, be made chargeable with rent ?
The relation of landlord and tenant did not exist by any ex-
press agreement; can it be implied? No one will assume that
the commissioners had the legal title, and a tenancy will never
be implied under one who has not the legal estate.
The appellant did not enter in subordination to the title of
any other person, and never acknowledged any obligation to
another. She was in possession as the owner in fee, and claim-
ing adversely to all the world, and the proceedings for condem-
nation were an acknowledgment of her title. The only hy-
pothesis which can be made is, that mere legislation divested
her of title, and made her an involuntary tenant of the cor-
poration. The doctrine is monstrous, and can not be sustained.
Complaint is made of the refusal of the court to give cer-
tain instructions. The court did not err in refusing to give
the eighth, ninth and tenth instructions for appellant.
1 24 Cook v. South Park Commissioners. [Sept. T.,
Opinion of the Court.
The eighth and ninth are, substantially, that, if lands adja-
cent to the park generally increased in value, in consequence
of the prospect of establishing a public park, then the lands
of appellant must share in such increase. This does not fairly
or necessarily follow. The adjacent lands would probably,
from their peculiar situation, derive a special benefit, and
were subject to a special burden. The lands needed for
the park must be purchased, and the park maintained, by
special assessments upon the adjacent lands. Their situation,
relatively, was so different that they were not a proper stand-
ard by which to judge the value of the lands taken for the
park.
The tenth instruction is clearly objectionable. It directed
that if one class of lands was unsaleable, and another class
saleable, the latter class Avould form the better criterion to
ascertain the true value of the lands in controversy.
It was not proper that the court should assume, as matter
of law, that one criterion was better than another. This
would have been an usurpation of the functions of the jury.
The relative situation of the lands was a subject for the con-
sideration of the jury, and they must determine its weight,
and its effect upon the value.
It seems to us that the two first paragraphs of the instruc-
tion given by the court upon its own motion, contain all the
law which was necessary to aid the jury in determining the
value of the lands.
We think there was no error in refusing to allow interest
on the amount of the verdict, intermediate its finding and re-
turn, and the rendition of the judgment of the court thereon.
Appellant, as well as the commissioners, made a motion to
set aside the verdict and for a new trial. The amount might
have been paid, if appellant had interposed no delay. In such
case, it is not right that the party causing or contributing to
the delay should be allowed interest. Williams v. Smith, 2
Caines, 252; People v. Gaine, 1 Johns. 343.
1871.] Cook v. South Park Commissioners. 125
Opinion of the Court.
At the time the court entered judgment upon the verdict
of the jury, appellant insisted that the judgment should be
absolute for the payment of the sum found. The judgment
was entered in strict conformity to the statute. It could not
have been in any different form. The court had no right to
award an execution, for execution could not issue upon the
judgment. Chicago & Milwaukee R. R. Co. v. Bull, 20 111. 218.
The only mode to coerce the payment of the judgment would
be by mandamus. By this proceeding the commissioners could
be compelled to levy and collect taxes, to be applied in dis-
charge of the damages awarded.
But we are asked to decide whether the judgment will not,
by force and operation of law, bear interest from the time of
its rendition.
When judgment has been entered upon the verdict, the
rights of the parties are fully determined, if no appeal be taken
or writ of error prosecuted. The absolute title to the land,
and the right to enter upon and use it, only await the payment
of the compensation, which has been fixed. The amount to
be paid is as fully and formally ascertained as is done by an
ordinary judgment. The court had authority to render it, and
it only wanted one of the requisites of a common judgment —
the award of an execution.
Though no execution could be ordered, the judgment was
the conclusion of the law upon the facts found by the jury.
The allowance of a claim against an estate is a judgment.
Judgments may be rendered against an executor or adminis-
trator for the debt of the deceased, and no execution can issue
in either case, but they bear interest.
We think that interest should be allowed upon judgments,
when final, in proceedings of this character. They are within
the spirit, if not the terms, of the statute which allows inter-
est upon all judgments recovered.
Counsel for appellees contend that the court erred in refus-
ing to permit proof of the price paid for other lands within
the park lines, and contiguous to the lands in controversy.
126 Cleaves v. Herbert. [Sept, Ti,
Syllabus.
Xo cross error has been assigned upon this refusal; no ar-
gument submitted on the part of appellant upon the question
presented ; and we can not regard the relevancy of this pro-
posed testimony raised by the record. It would be unjust to
appellant to decide the question without a hearing from her.
For the reasons given, the judgment is reversed and the
cause remanded.
Judgment reversed.
Benjamin L. Cleaves
Phillipine Herbert.
1. Pleadings — evidence. Under a plea of property in the defendant in
an action of replevin, a chattel mortgage, the conditions of which have
been broken, is admissible in evidence. Such a mortgage is sufficient to
enable the mortgagee to recover the property in an action of replevin.
2. Chattel mortgage — lien. The lien of a chattel mortgage is not
lost because the mortgagee fails to take possession of the mortgaged prop-
erty on the maturity of the first of a series of notes secured by the mort-
gage, as he might do under its provisions, but the lien continues until the
last payment falls due. It is optional whether the mortgagee w ill reduce
the property to possession on default in the payment of any but the last
instalment.
3. Where the mortgage describes the property as a "stock of goods,"
and provides that the mortgagor may retain and use the same until de-
fault in payment: Held, that the use of the goods, consisting of liquors,
etc., does not necessarily imply that the mortgagor may sell the same, al-
though he was a trader in liquors; that wines and liquors are frequently
kept in store to improve by age, as one of their uses by the owner.
Appeal from the Superior Court of Cook county.
1871. J Cleaves v. Herbert. 127
Opinion of the Court.
Mr. W. T. Burgess, for the appellant.
Mr. Ira W. Buell and Mr. William Vocke, for the ap-
pellee.
Mr. Justice Sheldon delivered the opinion of the Court:
The first objection taken as a ground for reversing the judg-
ment in this case, is the admission in evidence of the chattel
mortgage, in support of the averment of property in the plain-
tiff below, under the issue formed on the plea of property.
It is said the plea of property imports an absolute right to
the subject of the suit, while the mortgage shows only a qual-
ified right to it ; and that, therefore, the mortgage was not
admissible in evidence under such issue.
The mortgage had become forfeited, according to its terms, by
default in the payment of one note and the levy of an execu-
tion upon the property, and it tended to show a right of pos-
session in the plaintiff, and such a property in the subject of
the mortgage as would maintain the action of replevin, and
was admissible in evidence. The issue made upon the plea
of property, in this action, does not involve the absolute owner-
ship of the goods, as is supposed. It is sufficient if the plain-
tiff has a special interest in the property entitling him to the
present possession. Warner v. Matthews, 18 111. 83 ; Rogers v.
Arnold, 12 Wend. 30 ; 2 Greenlf. Ev. sec. 561.
It is next objected that the necessary preliminary proof
that the mortgagor, at the time of the execution and acknowl-
edgment of the mortgage, resided in the district of the justice
before whom it was acknowledged, was not made so as to war-
rant the reading of the mortgage in evidence to the jury. The
certificate of acknowledgment names the county, only, of the
justice, not the town. The effort on the trial on the part of
the plaintiff was, to show the mortgagor's residence to have
been in the town of South Chicago, and on the part of the
defendant that it was in thetownof Xorth Chicago; and al-
though not very clearly proved, the jury were warranted in
128 Cleaves v. HEEBEifr. [Sept. T.,
Opinion of the Court.
finding the former to have been the place of the mortgagor's
residence. The only controversy in this respect was upon that
point.
It seems to have been assumed in the course of the examin-
ation of witnesses, and in instructions asked by defendant's
counsel, that South Chicago was the town of the justice.
This objection we do not regard as well taken.
It is again insisted that there was not a sufficient demand
upon the sheriff for the property. The fault found with it is,
that plaintiff made claim for two notes, being more than she
was entitled to claim as against the sheriff, because the note
due August 1st, 1870, was then, as against the sheriff, under
the execution no longer a lien. This seems to be under the
mistaken idea that the lien of that note was lost because pos-
session was not taken of the mortgaged property on the note
becoming due. Such is not the case. When several notes matur-
ing at different dates are secured by a chattel mortgage, and
the condition of the mortgage is broken on default in payment
of any one of the notes, it is, nevertheless, optional with the
mortgagee to take possession on the first default or to await
the maturity of the last note and then take possession. Bar-
bour et al. v. White et al. 37 111. 165.
As to not specifying the property demanded, we regard the
demand as sufficient in that respect.
It is finally urged that the mortgage was fraudulent and
void as to creditors, on the ground that the mortgagee per-
mitted the mortgagor to hold a portion of the property de-
scribed in the mortgage, for sale, and to sell from the same in
the ordinary course of his business.
It is contended that such permission appears upon the face
of the mortgage.
The property is described in the mortgage under the gen-
eral terms, "all the stock of wines, liquors, cigars, barrels,
kegs, crockery ware, glassware, bottles, saloon fixtures and
furniture, gas fixings, and all such other goods and fixtures
1871.] Cleaves v. Herbert. 129
Opinion of the Court.
contained in the basement of the five-story brick building/'
etc. It provides that the mortgagor "should retain possession
of said property, and at his own expense to keep, and to use
and enjoy the same until default," etc. It was in proof that
the plaintiif, being a dealer in wines, etc., and keeping a sa-
loon, had sold out her stock in trade and business to Kutz,
the mortgagor, and had taken back upon the property this
mortgage.
It is said that, by the terms "stock" and "goods," is to be un-
derstood the articles of personal property in store for sale by a
dealer to customers in the course of business — that the only
use Kutz had for the stock was to sell it. And it is con-
tended, therefore, that under the circumstances the use of this
term in the mortgage, itself, evidenced the intent of the par-
ties that as to whatever property in the basement, would be
included in the description of stock and goods, the right to
use meant the right to sell.
But we can not adopt this view and attach such significance
to this permission to "use and enjoy," where so much of the
property mortgaged was for the purpose of mere use in the car-
rying on of the mortgagor's business, and especially in view
of the provision in the mortgage that it should be forfeited in
case of the sale of any part of the property mortgaged. The
jury, too, might have considered that the most profitable use
of the wines was to let them lie and improve by age. We can
not hold, then, that this mortgage, on its face, imports a per-
mission to the mortgagor to make sale of any portion of the
property mortgaged in the course of business.
There are circumstances attending and following the execu-
tion of the mortgage which tend to show that the wines men-
tioned in the mortgage were retailed by the mortgagor to his
customers, but no direct proof was adduced that any of these
specific wines were sold or retailed. There are, also, circum-
stances tending in the contrary direction. The furniture re-
plevied was found in the front room of the basement, in which
room the saloon was kept ; and the wines in the rear, in
9— 61st III.
130 C. & N. W. K. E. Co. v. Ward. [Sept. T.,
Syllabus.
what is called the cellar. It was in casks and barrels, and
some bottled wine. There was a lot of wine there besides
what was replevied. The plaintiff's wine was all on one side
of the cellar, with her brand on it. On the other side of the
cellar were other casks of wine with Kutz's, the mortgagor's
name, on them. The evidence seems to establish the fact that
the wines which were taken were still in their original casks
or packages, and it tends to show they had not been drawn
from.
The evidence was conflicting, and we do not feel prepared
to say that the verdict was so clearly against the weight of the
evidence as to call for its disturbance on that ground. The
newly discovered testimony was but cumulative, and pre-
sented no sufficient ground for a new trial.
The instructions seem to have presented to the jury the
law, as applicable to the facts of the case, very fully and cor-
rectly.
We perceive no substantial error, either in giving, refusing,
or modifying instructions.
The judgment of the court below is affirmed.
Judgment affirmed.
Chicago & Northwestern Katlroad Co.
v.
Dennis Ward.
1. Railroad— employee— negligence of company— liability for injury.
"Where a railroad company are in the habit of constantly taking damaged
cars from one station to another for repair, and a person is employed to
couple and switch such cars, and while so engaged he is injured in at>
tempting to couple a car to the train, by reason of the broken condition of
1871.] C. & N. W. E. R. Co. v. Ward. . 131
Opinion of the Court.
the car : Held, that the presumption is that he undertook the employment
subject to all of the risks incident to the place, and that this was one of
the risks he expected to incur when he accepted the employment.
2. Same — duty of company. It is the duty of a railroad company to
furnish a safe road and safe machinery, and on failing to do so it becomes
liable for injury to an employee therefrom if he is ignorant of the defects,
and therefore not contracting with reference to them. But that rule does
not apply where the employment is for the purpose of assisting in haul-
ing machinery that is defective, and the employee is injured when a de-
fective car is on the way to the proper shops for repairs, and the existence
of the defect implied no negligence on the part of the road.
3. Same — negligence. If it had appeared clearly that it was the custom
of the company to mark all damaged cars before sending them to the shop
to be repaired, and that the marks used indicated that they were dam-
aged, ?,nd also the time, manner and person who made the mark, and this
duty had been neglected, and the emplc^ee had been thereby thrown off
his guard in coupling the car, then a different question might have been
presented.
4. Instruction — negligence. An instruction which informs the jury
that the company is liable if the employee was injured whilst in the care-
ful discharge of his duty, by a car being out of repair through the failure
of the company to see that it was in repair, is wrong, as the car was being
removed to the proper place expressly to be repaired, aud the employee
was in the discharge of the duty he engaged to perform in coupling it for
the purpose.
Appeal from the Circuit Court of Cook county ; the Hon.
Henry Booth, Judge, presiding.
Mr. B. C. Cook, for the appellant.
Mr. Emery A. Storrs, for the appellee.
Mr. Chief Justice Lawrence delivered the opinion of
the Court : y/
This suit was brought by the administrator of James Ward,
and resulted in a verdict and judgment in his favor. The
record shows the following facts :
The deceased was in the employ of the railway company in
the capacity of car-coupler and switchman, and came to his
132 C. & N. W. E. R. Co. v. Ward. [Sept. T.,
Opinion of the Court.
death from an injury received while coupling cars at the South
Branch station. The testimony shows the brake was out of
order, and as the cars came together which the deceased was
about to couple, the bi*ake, which was too near the ground,
probably caught his foot and threw him upon the track. The
train passed over him, and his death soon followed.
It appears, by the evidence, that the company was in the
constant practice of taking damaged cars from South Branch
junction to South Branch station for repairs. Deceased was
empjoycd upon a train running twice each day between these
two points, and his employment required him to assist in the
management of damaged cars. The risk incidental to the.
occupation was voluntarily assumed, and the company can not
be made liable merely upon the ground that the car was not
in a proper condition for the ordinary uses of the road.
We held, in the case of The Chicago & Northiv ester n Railroad
Co. v. Swett, 45 111. 198, that a railway corporation must fur-
nish a safe road and safe machinery, and if it fails to do so,
and injury results therefrom to an employee ignorant of the
defects, and therefore not contracting in reference to them, he
may have his action as well as a passenger. But that princi-
ple does not apply to the present case. There is no evidence
tending to show that this car was not properly constructed in
the first instance. It does not appear how the machinery con-
nected with the brake became deranged, but only that the car
had been brought in from the western portion of the road and
was on its way to the proper locality for repairs. To use a
car with damaged machinery upon a passenger train would,
of course, be extreme carelessness; but this was an empty
freight car, and was not then in use for the business of the
road. The company was doing with this car the most proper
thing they could do, namely ; sending it to the usual place for
repairs. The peril incident to the coupling of damaged cars
was a peril to which the deceased knew he was frequently
exposed by the very nature of his employment, and one which
1871.] C. & N. W. R. R. Co. v. Ward. 133
Opinion of the Court.
had necessarily to be incurred. Its existence implied no neg-
ligence whatever upon the part of the company.
There is but one point in this record which can furnish even
ground for argument in behalf of the plaintiff's right to re-
cover, as it is the only matter in regard to which there is rea-
son for imputing negligence to any person. There is some
evidence that it was the custom of the company to mark with
chalk the cars needing repairs, and it appears this was not so
marked. Perhaps counsel would contend that the deceased
was misled by the absence of this mark and therefore under-
took to couple the damaged car to the train without using the
degree of caution he would have used if aware of the condi-
tion of the car. But this line of inquiry was not followed to
any extent, and the case was evidently not submitted to the
jury upon this question. There is no testimony as to where,
■when, or by whom the car should have been marked, or what
was the character of the mark usually employed. As the
record now stands, admitting there was negligence in not
marking the car, the inference is that it was the negligence of
a fellow servant, and nothing appears to exempt the case from
the ordinary rule excusing the common master from liability
for injuries thus produced.
That the case was not tried upon the theory that the com-
pany was chargeable with negligence in not marking the car,
is also evident, from the fact that the instructions make no
allusion to this matter. The only one given for the plaintiff,
stating what the jury might consider a ground of recovery,
asserts, in substance, that the defendant would be liable if the
deceased, while in the careful discharge of his duty, was in-
jured in consequence of a car being out of repair through
the failure of the company "to exercise reasonable and ordi-
nary care in watching and tending such car." There was no
evidence, whatever, showing how the car came to be out of
repair, and for this reason alone the instruction would be ob-
jectionable. A still more forcible objection, however, is,
that the instruction authorized the jury to find their verdict
134 Eddie v. Eddie. [Sept. T.,
Syllabus. Opinion of the Court.
upon a ground which, of itself, is not, for the reasons already
given, sufficient to sustain this verdict, when we take into con-
sideration all the facts of the present case.
Judgment reversed.
David Eddie
v.
Edward Eddie.
1. Plea of set-off — bill of particulars — waiver. Where a plaintiff
goes to trial where a plea of set-off has been filed, but no bill of particu-
lars is furnished, and no objection is made, he thereby waives a bill of
particulars and can not rely upon such omission as error.
2. Practice— judgment. Under the 14th and 19th sections of the prac-
tice act, where there is a plea of set-off, and the proof warrants it, the jury
may find a verdict against the plaintiff and the court may render a judg-
ment on it.
3. Accounting — of an error therein. Where there is a question whether
parties to an action have accounted and agreed upon a balance due, it is
not error for the court, when the evidence warrants it, to instruct the
jury that, if any error was committed in such settlement, accidental or
otherwise, such accounting is not binding upon the party against whom it
is made.
Appeal from the Circuit Court of Winnebago county; the
Hon. William Brown, Judge, presiding.
Messrs. Lathrop & Bailey, for the appellant.
Mr. C. M. Brazee, for the appellee.
Mr. Justice Walker delivered the opinion of the Court :
It is urged that appellee should have filed a bill of particu-
lars with his plea of set-off. If desired, appellant should have
1871 .] Eddie v. Eddie. 1 35
Opinion of the Court.
asked for, and obtained, a rule on appellee to file a bill con-
taining all of the items of his account, with dates, amounts,
and in form. But by permitting appellee to prove his account
without taking such a rule, and making no objection to the
evidence, for that reason he waived the statutory requirement
and virtually consented that the evidence should be given,
and he can not now raise the question for the first time in
this court. To allow it, would be to enforce technicalities, and
disregard the conduct of parties implying a waiver or consent,
to the obstruction of justice instead of its promotion. There
is no force in this objection.
The 19th section of the practice act provides that, in ac-
tions of contract, the defendant, having claims against the
plaintiff, may plead the same, or give notice thereof as pro-
vided by the 14th section of the same act, under the general
issue, or the plea of payment, and so much thereof as shall be
proved on the trial shall be set off against the plaintiff's de-
mand and a verdict given for the balance due ; and if it ap-
pears that the plaintiff is indebted to the defendant, the jury
shall find a verdict for the defendant and certify the same to
the court, and the court is required to render a judgment in
favor of the defendant for the amount so found, with costs,
upon which an execution may issue. It is necessary, under
the general issue or the plea of payment, that the notice re-
quired by the 14th section should be filed to obtain the ben-
efit of the set-off and judgment, but when the demands are
specially pleaded the judgment may be rendered under the
19th section. Appellee's demands were pleaded by his plea of
set-off, and that brought his defense under that section, and
if it was proved that appellant owed him, he was entitled to a
judgment under that plea.
It is next urged that the court below erred in giving this
instruction :
"The court instructs the jury that a settlement between two
parties is a mutual accounting between them, done with the
136 Eddie v. Eddie. [Sept. T.,
Opinion of the Court.
full assent and knowledge of both parties, by which the par-
ties shall arrive at some definite result as to the amount due
from one to the other, and in which result both parties agree
as to such amount due. And if the jury believe, from the evi-
dence, that the pretended settlement, claimed by the plaintiff
to have taken place in March, 1868, was not an accounting in
which both parties brought forward their accounts for settle-
ment, and did not arrive at any conclusion to which both par-
ties agreed, or if there was committed any error in such set-
tlement, accidental or otherwise, on the part of the plaintiff,
then such accounting and pretended settlement is not binding
upon the defendant."
Exceptions are taken to the last clause, but we fail to per-
ceive that it is erroneous. No one will contend that, if an
error was committed in settling accounts by parties, the mis-
take or error might not be shown. And if it may be, and is
shown, then the party against whom the error was committed
is not bound by that settlement as then made. This instruc-
tion only 'announces this rule, and is correct. The law can
never sanction such wrong as to bind a party to an account-
ing that is shown to be unjust, whether the error in the ac-
counting occurred by accident or design. It would be viola-
tive of every principle of reason and justice.
The giving of the other instruction for appellee was proper.
It was based on the 19th section of the practice act, and told
the jury if they found, from the evidence, that the plaintiff
was indebted to the defendant, they would so find. We have
seen that, on sufficient proof under the plea of set-off, such a
verdict is fully warranted. There was no error in giving this
instruction.
It is insisted that the evidence fails to sustain the verdict.
When it is carefully examined it will be seen that it is con-
flicting. Appellant swears that there was a settlement of
accounts between them, and the amount due to him ascer-
tained and stated. This, appellee positively denies. We fail
1871.] Means v. Lawrence et al. 137
Syllabus.
to find that the evidence shows that appellee had any books
or papers showing his account against appellant, present,
when they looked over and footed up the account of the lat-
ter. Appellee swears he had not, and all seem to agree that a
large mistake was made in the addition. Appellant, nor any
of his witnesses, testify that appellee admitted that he owed
appellant the amount found on appellant's account, or any
other amount. From all of appellant's evidence, it appears
rather to have been only the examination and footing up of
appellant's account, and not a settlement of accounts. And
the settlement is positively denied by appellee. But if his
evidence were left out of the case, all of the evidence pro-
duced by appellant is very slight that any settlement was ever
made. We are of opinion that the jury were warranted in
finding there was ho settlement.
As to a portion of the articles claimed to have been sold to
appellee, and a number of payments made to appellant, they
contradict each other, and in such a conflict it was for the
jury to say which was entitled to be credited. They have
found that question in favor of appellee, and we think the
evidence sustains the verdict, and the judgment must be
affirmed.
Judgment affirmed.
Isaac Means
V.
Marvin A. Lawrence et ah
Instructions should be based on the evidence.
Appeal from the Superior Court of Cook county ; the Hon.
William A. Porter, Judge, presiding.
Messrs. Eustace, Barge & Dixon, for the appellant.
Mr. Ira W. Buell, for the appellees.
138 Means v. Lawrence et al. [Sept. T.,
Opinion of the Court.
Mr. Justice Breese delivered the opinion of the Court :
This was an action of assumpsit to recover damages for the
breach of a contract to accept corn purchased by appellees for
appellant.
A verdict was found for the plaintiff and judgment thereon
rendered, to reverse which defendant appeals.
There is some conflict in the testimony in regard to the pre-
cise nature of the contract, and with whom made. We infer,
from the evidence, that appellant never intended or expected
to receive any corn from appellees. He expected to be ben-
efited by a rise in the market price of corn during the year
1869, which he calculated, from the unusual cold weather at
the time the contract is alleged to have been made — July 26,
1869 — would be much enhanced by a small crop. He had the
whole of the year 1869 in which to perform his contract. If
the market price on the 31st of December, 1869, was above
one dollar and ten cents, for which he bought, he would be
gainer ; if below, he would lose ; no corn actually passing
between the parties, or expected to pass.
That appellant did make a contract with appellees, in addi-
tion to the oral testimony on the trial, appears from his letter
of September 18, 1869, in which he says to appellees : "Yours
received and contents noted. You will probably recollect the
arrangement I made with you when I bought the corn. I am
in just the same circumstances I was then. When the time
comes to settle, I am ready. If there is anything coming to
me I will receive it, and if there is anything against me I will
pay it, but I won't pay anything now."
This, we understand, was in reply to a demand of appellees
that he should put up a margin according to the usage in such
cases.
In this letter there is no allusion to Reinman as the party
with whom appellant contracted, as he now insists. Had he
made no contract with appellees to hold this grain for him,
would he not have said so in this letter ? It was not the grain
1871.] Means v. Lawrence et al. 139
Opinion of the Court.
he wanted, but it was the advantage of the market, but would
not pay any money then/ as margin, to keep his agents safe,
who were, themselves, paying it ; but on settling day, Decem-
ber 31st, he would receive what was coming to him if he won,
or pay if he lost.
The preponderance of the testimony is with appellees. It
tends so strongly to sustain the claim set up in their declara-
tion that we can not disturb the verdict.
Exception is taken to the right of the court to give the
following instruction :
"The jury are instructed that if they believe, from the evi-
dence in this case, that the plaintiffs sold five thousand bush-
els No. 2 corn to the defendant on the 26th day of July, 1869,
to be delivered to the defendant at some time subsequent
thereto, and during said year, and that at the time of the
making of such contract, or sale, the plaintiffs did not have
said five thousand bushels of corn, but intended to go into the
market and buy the same, such facts, if the jury believe from
the evidence that they are facts, constitute a contract that can
not be enforced, and one on which the plaintiffs would have
no right to recover."
As an abstract proposition of law the instruction is doubt-
less correct, but it is not based upon any evidence in the
cause. The proof shows Lawrence, one of the appellees, had
purchased the quantity — five thousand bushels — of Reinman,
and reported it to appellant within five minutes thereafter, on
regular 'change in the afternoon, and appellant was then
asked to put up a margin, which he declined doing.
There is no question made about the amount of damages.
Perceiving no error in the record, the judgment must be
affirmed.
Judgment affirmed.
140 Bcehm et al. v. Boehm. [Sept. T.,
Syllabus. Statement of the case.
Christoph Bcehm et al.
v.
Ernst Bcehm.
Pkactice— judgment against part, only, of joint defendants — construction
of act o/1869. The second section of the act of March 26, 1869, amenda-
tory of the practice act, which provides that, in suits brought against sev-
eral defendants, where the plaintiff fails to establish his case against, one or
more of the defendants, the plaintiff shall, notwithstanding, have judg-
ment against the other defendants, applies only to actions on written con-
tracts.
Appeal from the Circuit Court of Cook county ; the Hon.
John G. Rogers, Judge, presiding.
This was an action of assumpsit, brought by Ernst Boehm
against Christoph Boehm and twenty-one others. Declaration
on the common counts, and bill of particulars as follows :
Christoph Bcehm et al
To Ernst Bcehm, Dr.
To services as preacher, from December 10, 1865, to December 10,
1868, $750 per year $2,250 00
To fuel, groceries, provisions, and feed for one horse, for same
time 1.500 00
$3,750 00
Contra.
By cash 500 00
To balance $3,190 00
Default entered as to part of the defendants, and cause pro-
ceeded to trial. At the close of the plaintiff's case, no evi-
dence having been offered to sustain the action against three
of the defendants, the plaintiff asked leave to dismiss the suit
as to them. To this the defendants objected, and asked the
court to instruct the jury that, if the plaintiff had failed to
make out a cause of action against any or either of the de-
fendants to the suit, they should render a verdict for the de-
fendants.
1871.] Bcehm et al. v. Bcehm. 141
Opinion of the Court.
The court refused to instruct the jury as requested, but
granted plaintiff's motion to dismiss, and the case proceeded
to a verdict and judgment against all the defendants except
those included in such motion. To this ruling of the court
the defendants duly excepted, and they bring the record to
this court, asking a reversal of the judgment.
Messrs. Miller, Frost & Lewis, for the appellants.
Mr. H. Barber, Jr., for the appellee.
Per Curiam : The only question presented by this record
is, as to the construction of the 2d section of the act of 1869,
amending the practice act. That section reads as follows :
"In all actions brought against several defendants, when the
plaintiff shall fail to establish his case against any one or more
defendants, who shall put their joint liability in issue by proper
pleading as now required, judgment shall be given in favor of
such defendant or defendants, but the plaintiff shall, notwith-
standing, be entitled to judgment against such other defend-
ant or defendants as may have made the contract sued on :
Provided, that this action shall only apply to written contracts,
when the execution of the instrument sued on shall be put in
issue by plea or pleas."
The question is, whether this section applies to verbal, or
only to written contracts. The majority of the court are of
opinion that it applies only to written contracts. The act is,
in any view, drawn in a very careless manner, and it is diffi-
cult to see what, on any construction, is the object of the pro-
viso, since the law could necessarily apply to suits on written
contracts only where the execution of the instrument had been
put in issue by the pleadings. The body of the section, how-
ever, shows that it was intended merely as an amendment of
the old statute, which required persons, sued as partners, or
as joint makers of a written instrument, to put the partner-
ship or the joint liability in issue by a plea verified by affida-
vit, if they wished to raise this question on the trial. Except
142 Weckler v. City of Chicago. [Sept. T.,
Syllabus.
where the defendants were sued as partners, this act applied
only to suits upon written instruments, and the act under con-
sideration was designed merely as an amendment to the for-
mer act by giving the plaintiff a right to a judgment against
those defendants as to whom he could prove a joint liability,
•suffering a judgment against himself as to the others. The
act, in terms, refers to cases in which the defendants have put
their joint liability in issue "by proper pleading as now re-
quired," that is, by plea verified by affidavit. As the old law
had no application to suits upon parol contracts, except in
suits against partners, we must hold that this has none.
The judgment is reversed and the cause remanded.
Judgment reversed.
John Weckler
v.
The City of Chicago.
1. Streets and alleys. Where an ordinance required the widening
of an alley running north and south through a block, and the opening of
a new alley running east and west through the same block, and also the
condemnation of two triangular pieces of land at the intersection of these
alleys for the purpose of improving the ingress and egress to and from the
alleys: Held, that these were separate and distinct improvements, and
could not be united in one proceeding; that in assessing benefits, property
owners would be liable to assessments that they would not if the improve-
ment were made by separate proceedings.
2. Same. The charter of the city of Chicago has not conferred power
to combine two or more such improvements in one proceeding, and as it
would be liable to abuse, if not impossible of fair execution, it can not be
clone.
3. Eminent domain — its exercise. The charter of the city requires the
commissioners, in making an assessment, to determine and appraise to the
owner the value of the real estate appropriated for the improvement and
the injury arising to him from the condemnation, which shall be awarded
1871. J Weckler v. City of Chicago. 143
Opinion of the Court.
to such owner as damages after deducting therefrom any benefits he may
derive from the improvement: Held, that this provision of the charter
limits the assessment of benefits derived from the improvement for which
the real estate is condemned, and implied]}'' for«bids the assessment of ben-
efits derived from other improvements.
4. Same — benefits. Where a person's property is condemned for the
opening of an alley running east and west through a block, he should not
be charged for benefits he might derive by widening an alley running
north and south through the same block. The benefits must arise from the
improvement for which the real estate is taken.
5. Eminent domain — constitution. The constitution declares that no
man's property shall be taken or applied to public use without just com-
pensation being made to him : Held, this compensation must be pecuniary
in its character because it is in the nature of a compulsory purchase. Stat-
utes authorizing municipal bodies to exercise the right of eminent do-
main, must be strictly construed.
Appeal from the Superior Court of Cook county; the Hon.
Joseph E. Gary, Judge, presiding.
Mr. D. L. Shorey, for the appellant.
Mr. M. F. Tuley, for the appellee.
Mr. Justice McAllister delivered the opinion of the
Court :
The counsel for appellant has filed in this case a very con-
cise, forcible and exhaustive argument, to show that the stat-
ute under which application for judgment was made by the
collector of the city of Chicago, had been abrogated by sec-
tion 9 article 4 of the new constitution. As the court has
already decided that question in other cases in accordance
with the views presented, we do not deem it necessary to re-
state them here. The point is fatal to the judgment.
The printer's certificate of publication of the notice for the
meeting of commissioners to determine damages and benefits,
is in the exact form as in the cases of Rue v. City of Chicago,
57 111. 435, and Rich v. City of Chicago, 59 111. 286, where it
was held fatally defective.
144 Weckler v. City of Chicago. [Sept. T.,
Opinion of the Court.
The 1st section of the ordinance updn which these proceed-
ings rest, is as follows :
"Section 1st — That the ten-foot alley running north and
south through block 4, original town of Chicago, from Kinzie
street to North Water street, is hereby ordered widened to
the width of twenty feet, taking therefor the west ten feet
of lot 6 in block 4, original town of Chicago ; and also that
an alley sixteen feet wide be, and is hereby ordered opened,
running east and west in said block 4, original town of Chi-
cago, from North LaSalle street west to intersect with said
alley running north and south through said block 4, as wi-
dened, the western terminus of said alley running east and
west to be midway between North Water street and Kinzie
street, and the north line at the eastern terminus thereof to be
eighty feet south of the south line of Kinzie ; and also that
two triangular pieces of land, each five feet long north and
south, and five feet wide east and west, be, and are hereby or-
dered condemned, for the purpose of improving the ingress
and egress to and from the alleys in said block 4, original
town of Chicago, one of said pieces of land to be taken from
the southwest corner of the north 72 87-100 feet of lot 6, and
one from the northwest corner of the south 72 87-100 feet of
lot 6, all in block 4, original town of Chicago, in accordance
with the plan hereto annexed/'
This ordinance combines, in one proceeding, two improve-
ments treated as one.
The 2d section orders that an "appraisal of the damages
and recompense due to the owners of the real estate necessary
to be taken for said improvement, be forthwith made, and its
total damages and expenses be ascertained."
The 3d section directs that the sum of $10,065.82 be as-
sessed by the commissioners upon the real estate deemed by
them specially benefited by the improvement.
The assessment is made as an entirety for the purpose of
defraying the cost and expense of the improvements, regard-
ing them not as distinct, but as one ; and there is nothing in
1871.] Weckler v. City of Chicago. 145
Opinion of the Court.
the proceedings from which it can be ascertained what por-
tion of the alleged benefits was assessed against the lots in
this block for one or the other specified alleys, or for widen-
ing the entrance, but all are combined as an entirety.
The counsel for appellant maintains that these alleys inter-
secting each other at right angles, though in the same block,
are distinct improvements, and that, in order fairly to a*pply
the principles which should govern, it was indispensable that
they should be kept separate. The counsel for the corpora-
tion says that, as the alleys are in the same block and are con-
nected together, no good reason can be perceived why property
owners should be subjected to the double expense which
would be occasioned by two assessments ; that, while the city
can not make two entirely disconnected improvements in one
assessment, it can include in one assessment the improvements
contained in this one, and there is such a connection between
them that the benefits derived from each, if separate, are
common to all and from all when they are made as one im-
provement.
This is the length and the breadth of the argument on be-
half of appellee in answer to the objection of the opposite
counsel.
The court can see by the ordinance and the plan referred to
in it, that the west end of the east and west alley, to be opened
sixteen feet wide from North LaSalle, does intersect with the
north and south alley ordered to be widened, and so far as
that intersection is concerned there is a connection, as there
would be in the case of streets which thus intersected, or one
crossed the other. But whether, from this fact of intersec-
tion, the benefits derived from each, if separate, are common
to all and from all when-made as one improvement, as claimed
by counsel for appellee, is more than this court can judicially
know. There is no evidence on the subject. It rests wholly
on presumption or assertion. That they are two different
alleys, is as apparent as that North LaSalle street and Kinzie
10— 6 1st III.
146 Weckler v. City of Chicago. [Sept. T.,
Opinion of the Court.
street are two different streets, although they intersect each
other.
It is very obvious that the charter does not contemplate the
joining of several streets or alleys in one proceeding to open
or widen. "Whenever the board of public works shall rec-
ommend the opening, straightening, widening, or extending of
any street, lane, alley or highway, in said city, * * they
shall furnish to the common council a plan or profile of the
contemplated improvement" etc. Sec. 4, chap. 7. So it is ex-
pressed, in the singular, in the 5th section : "Whenever any
order is passed by the common council by virtue hereof, for
the making of any public improvement mentioned, etc., which
shall require the appropriation or condemnation of any land
or real estate, the commissioners, etc., shall forthwith proceed
to ascertain and assess the damages and recompense due to
the owners of such lands respectively, and at the same time to
determine what real estate will be benefited by such improve-
ment" etc.
By the 6th section they are required to be sworn, before
making the assessment, to give six days' notice of the time and
place of their meeting for the purpose of making the assess-
ment, in which notice they must specify what the assessment
is to be for, and describe the land to be condemned. The
meeting of the commissioners must be in a public place in the
city, to be specified in the notice, and all parties interested in
such assessment shall have the right to be heard in person or
by counsel. The commissioners shall view the premises to be
condemned, and receive any legal evidence that may be
offered for the purpose of proving the true value thereof, or
the damages that will be sustained, or benefit conferred, by
reason of the contemplated improvement.
By the 7th section, "the commissioners, in making said
assessment, shall determine and appraise to the owner or own-
ers the value of the real estate appropriated for the improvement,
and the injury arising to them respectively from the condemnation
1871.] Weckler v. City of Chicago. 147
Opinion of the Court.
thereof, which shall be awarded to such owners as damages,
after making clue allowance therefrom for any benefit which
such owners may respectively derive from such improvement."
This section we regard as conclusive of the question, for,
when it declares the authority to make a due allowance from
the damages ascertained for any benefits which such owners
may respectively derive from such improvement, it means ben-
efits derived from the improvement for which the real estate
was appropriated, and impliedly forbids the allowance or ap-
plication of benefits derived from other improvements. When
the north and south alley was ordered to be widened ten feet,
the land requisite for that purpose, when taken, was appropri-
ated for the improvement of widening that alley. The land
taken to widen that alley was not appropriated for the im-
provement of opening a new alley sixteen feet wide and run-
ning east and west. When the amount of damages was found
in favor of a party whose land was appropriated for widening
the north and south alley, such damages were subject to no
diminution for benefits except such as were derived from the
improvement for which that party's land was appropriated, and
it would have been a violation of the principle of the 7th sec-
tion above quoted to diminish such damages by supposed ben-
efits derived from the other improvement of opening the new
east and west alley; and, for the same reason, damages for the
value of land appropriated for opening the east and west al-
ley, could not be lawfully diminished by either theoretical or
actual benefits derived from widening the north and south
alley, simply because widening the latter alley is not the im-
provement for which the lands taken to open the former
were appropriated.
The constitution declares that no man's property shall be
taken or applied to public use without just compensation
being made to him. "This compensation must be pecuniary
in its character because it is in the nature of a payment for a
compulsory purchase." The effect of the right of eminent
148 Wbckler v. City of Chicago. [Sept. T.,
Opinion of the Court.
domain against the individual amounts to nothing more than
a power to oblige him to sell and convey when the public
necessities require it. Cooley's Const. Lim. 559, note 4, and
cases there cited.
This view is not presented for the purpose of assailing the
constitutionality of the statute and holding it invalid. We
discussed that subject at length in the case of Rich v. City of
Chicago, supra, and although a majority of the court doubted
the constitutionality of the charter respecting condemnation
of lands, yet, upon the principle of stare decisis, we decided
to enforce it. The character of the provision now in question
is compared with the fair requirements of the constitution,
with the view of determining whether that provision of the
statute ought to receive a liberal construction or a strict one.
We are constrained to say that, as it is hardly to be tolerated
even when strictly construed, it ought not to be extended one
iota by construction. If these two alleys can be included in
one proceeding, and the value of lands taken for one be com-
pensated by benefits derived from the other, because one alley
intersects the other, where will be the limit?
If this proceeding be held valid and the precedent estab-
lished, what will hinder the board of public Avorks from uni-
ting numerous improvements in one proceeding requiring the
condemnation of land, and justify it on the ground that the
streets intersect and the improvements confer a common ben-
efit upon the entire area of their locality?
If the ordinance in question, so far as it goes, is valid on
the ground that these different alleys intersect, and are in a
certain area called a block, then why not go farther, and for
the same reasons, add the widening of North LaSalle and of
Kinzie streets by condemning a portion of this block upon
the east for LaSalle, and upon the north for Kinzie, in the
same ordinance for the alleys, and make an entirety of them
all as one improvement?
1871.] Weckler v. City of Chicago. 149
Opinion of the Court.
To allow such a proceeding is to sanction practical confis-
cation under color of exercising the right of eminent domain.
If a man's property were taken in such a proceeding for wi-
dening North LaSalle street, the valuation and damages ascer-
tained, then, after a fair allowance of all the benefits derived
from the widening of that street which would be the improve-
ment for which his land was appropriated, he still might have
a balance due him in money of perhaps half the valuation.
But instead of setting down that balance payable in money,
the commissioners combine the benefits supposed to be derived
from widening the north and south alley, for widening Kin-
zie street, for opening the east and -west alley, and the money
balance is not only swept away but his remaining property
subject to a heavy charge in addition. It is apparent that
such a proceeding is just as much against the spirit and in-
tention of the statute as if the compensation found to be justly
due to an individual, whose land is taken for a street or alley,
were adjudged to have been received in benefits derived from
the general improvement and growth of the city.
And, besides, if several improvements may be thus joined
in one proceeding, on the theory that the streets intersect and
the benefits are common to all, property owners, whose land
was not taken but was subject to be assessed, would, in all
cases where their means were limited, be overwhelmed by the
weight of the burden and be compelled to submit to a forced
sale of their property without hope of redemption.
We have examined the charter and its amendments with all
the care which the importance of this question demands, and
have found no provision nor been referred to any which gives
any color of support to this proceeding.
Section 8, Gary's Laws, 179, authorizes the board to com-
prise two or more notices which are required to be published,
in one advertisement, and this authority is carefully guarded
by a proviso. Why so particular in this instance, if the char-
ter contemplated the uniting of several improvements in one
150 McNeil v. Chicago City Eailway Co. [Sept. T.,
Syllabus.
proceeding ? Such a joinder renders the application of the
statutory principle, respecting the allowance of benefits, im-
practicable.
The judgment is reversed and the cause remanded.
Judgment reversed.
Malcolm McNeil
v.
The Chicago City Railway Co.
1. Charter — contract. Where the charter of ahorse railway company-
authorized them to build a single or double track railway over any streets
in the city of Chicago, as had been or should be authorized by the com-
mon council, and full permission was given by ordinance to lay a track, in
which a time was fixed for its completion, and a forfeiture was provided for
iu case of non-completion, and before the expiration of the time the ordi-
nance was amended and the time extended for the period often years:
Held, that the operation of this latter ordinance was to extend the time for
ten years after the expiration of the time fixed by the previous ordi-
nance.
2. Acceptance op the terms op the ordinance. After this latter
ordinance was adopted, the company passed a resolution adopting the terms
of the ordinance on the condition of the repeal of certain other ordinances,
and agreed to a postponement of laying the track for the time mentioned.
Subsequently, the common council accepted the proposition contained in
the resolution, reciting that the company had obligated itself to postpone
the laying of the track for the period of ten years, and the amendatory or-
dinance was affirmed : Held, this did not constitute an abandonment of
the right to build by the company, but merely a postponement of the right.
3. Contract. The effect of this contract was to extend the time ten
years longer, and the period of the delay began to run from the date of
the ordinance accepting the proposition contained in the resolution, and
will end ten years from that date. The ten years extended time must be
added to the original time given for laying the track.
Appeal from the Circuit Court of Cook county.
1871.] McNeil v. Chicago City Railway Co. 151
Statement of the case.
This was a suit in equity, brought by appellant, in the cir-
cuit court of Cook county, against appellees, to restrain them
from constructing a railway track on South Clark street, be-
tween Randolph and Polk streets, upon the ground that, at
the time they were proceeding to lay their track, to wit, on the
20th of July, 1870, the company had no right to construct a
track on that street. The charter of the railway company
authorizes them to construct tracks on the streets in the city of
Chicago, by permission of the common council had and ob-
tained.
On the 23d of May, 1859, the common council, by ordi-
nance, gave permission to the company to lay a single or double
track in certain streets in the south and west divisions of the
city, among which was the portion of South Clark street that
they are sought to be restrained from building. The ordi-
nance, however, required the railway to be completed within
eighteen months.
In February, 1860, the original ordinance was amended so
as to extend the time for constructing the railway in Clark
street, for ten years beyond the time first named. After the
adoption of this amendatory ordinance, and in the same month,
the company accepted the terms of the amendatory ordinance
upon the condition of a repeal by the common council of sec-
tions nine and twelve of the first ordinance.
On the 9th of March, 1860, the common council passed an
ordinance accepting the proposition, as follows: "That the
resolution of the Chicago Railway Company passed on the
18th day of February, 1860, tendered to this body, to which
reference is hereby made, whereby the said company obligates
itself to postpone the lading down of its track on South Clark
street for and during the period of ten years, be, and the same
is hereby, and the said amendatory ordinance therein men-
tioned, affirmed."
Complainant contends that the amendatory ordinance, reso-
lution and acceptance constitute an abandonment and sur-
render by the company of all rights and privileges as to South
152 McNeil v. Chicago City Railway Co. [Sept. T.,
Opinion of the Court.
Clark street, between the points named. The company deny
this proposition, and insist that it was but an extension of the
time within which to construct their track, from the 9th of
March, 1860, till the 9th of March, 1870.
The cause was tried on the bill, amended bill, the cross bill,
answers and replications, and stipulation as to particular facts
in reference to the company not having constructed railways
in certain streets in the city.
On a hearing below, the court rendered a decree dismissing
the bill, from which complainant prosecuted this appeal.
Messrs. Hoyne, Horton & Hoyne, and Mr. Francis Ad-
ams, for the appellant.
Messrs. Hitchcock, Dupee & Evarts, for the appellee.
Mr. Justice Thornton delivered the opinion of the Court :
This bill was filed to enjoin and restrain the railway com-
pany from constructing its track on South Clark street, be-
tween Randolph and Polk streets, in the city of Chicago.
The question is one as to the right of the company, and this
must be determined by a construction of the ordinances of the
common council of the city, and the resolution of acceptance
on the part of the company.
The charter of the company conferred the right to construct,
maintain and operate a single or double track railway in and
over such streets in the city of Chicago as had been or should
be authorized by the common council.
Full permission was given, by ordinance, to lay the track,
in the bill mentioned. Gary's Ordinances, sec. 2, 401.
A time for the completion of the railway was fixed in sec-
tion three of the same ordinance, and by section nine a for-
feiture was provided for non-completion within the time speci-
fied.
Before the expiration of the time, these ordinances were
amended, and the time for the construction of the track on
1871.] McNeil v. Chicago City Railway Co. 153
Opinion of the Court.
Clark street was " extended for the period of ten }rears * *
beyond the time" mentioned in the amended ordinance.
■Gary's Ordinances, 404.
This amendatory ordinance must be construed as extending
the time for completion for ten years after the expiration of
the time fixed in the first ordinance. No other meaning can
properly be given to it. The language is, to extend the period
ten years " beyond the time mentioned in said (the amended)
ordinance."
The railway company, by resolution, accepted the provis-
ions of the last mentioned ordinance on condition of a repeal
of certain other ordinances, and agreed to a postponement of
laying its track during the time therein mentioned.
In March following the adoption of the resolution, the
common council accepted it by ordinance, reciting that the
company had obligated itself " to postpone the laying down
of its track * * * for and during the period of ten
rs," and the amendatory ordinance was affirmed. Gary's
Ordinances, 405.
If this contract did not constitute an abandonment or sur-
•ender of the power or privilege granted by the common coun-
:il on the 23d of May, 1859, then the company had eleven
years and six months in which to construct its railway. This
;ime would expire on the 23d of November, 1870.
If the company had intended to surrender its rights, there
would have been no necessity for the circumlocution used, but
it would have said so in plain and unequivocal language.
It should not be deprived of a valuable right by doubtful con-
struction.
The ordinances and resolution must all be viewed together ;
effect must be given to each, and thus the meaning of the
whole ascertained.
It is contended by the complainant that, by the resolution,
and acceptance thereof, the company agreed not to lay its
track on South Clark until November, 1870, and that this
agreement constituted a surrender of its privileges granted by
154 McXeii, v. Chicago City Railway Co. [Sept. T.,
Opinion of the Court.
the original ordinance. The case may be stated thus: A right
was granted to the company, to be exercised within a limited
time. Before the expiration of the time, it is extended, with-
out condition. The extension is accepted upon the terms
offered, and, in consideration thereof, and of the repeal of cer-
tain ordinances, the company agrees to postpone the exercise
of the right for the extended time. The other party repeals
the ordinances and assents to the conditional acceptance. The
contract thus completed was not an abandonment, but merely
a postponement of the right.
What delay was the result of the arrangement between the
city and the company? The common council gave ten years
longer time, to which the company assented, upon conditions.
They were agreed to by the common council, and the first pro-
posal affirmed. The ordinance of March 9th in no sense
changed the amendatory ordinance of February 13th, but re-
affirmed it, and complied with the conditions and repealed the
ordinances. The contract was then completed, and the agree-
ment to delay the laying the track for ten years was the chief
result. When did this period begin, and when did it end?
It did not commence at the date of the amendatory ordinance.
That was only a grant of time, not binding upon the company
until acceded to by it. The resolution was only a conditional
acceptance, and not until the ordinance of March 9th was
there a compliance with the conditions. Then the agreement
was consummated between the parties. The period of ten
years then began to run, and expired within ten years there-
after.
By a consideration of the ordinances and resolution, Ave are
of opinion that ten years of extended time should be added to
the original time given for laying the track; that the agree-
ment of the company was merely to delay for ten years from
the time of extension, and that it had the residue of the eleven
years and six months from the first grant of the right in which
to lay the track of its railway.
1871.] City of Rockford v. Hildebrand. 155
Syllabus.
The same construction substantially has been given to this
contract by the city of Chicago, one of the parties, by an or-
dinance adopted on the 21st of November, 1870, and the time
was again extended.
The decree of the court is affirmed.
Decree affirmed.
The City of Rockford
Isaac Hildebrakd.
1. Cities — sideicalks — 7'epairing. It is a duty restiug on cities to keep
their streets and sidewalks iu a safe condition for persons passing along
and over them, but they are not bound to keep them absolutely safe so as
to preclude the possibility of accident or injury, but they are bound to
exercise ordinary care and diligence to keep them reasonably safe.
2. Same — ordinances as evidence. It is not error to admit the ordi-
nances of a city when it is sued for injury resulting from neglect in keep-
ing the sidewalks in a safe condition, when they tend to show the city has
control thereof and had taken the streets under its cognizance. Such ordi-
nances are relevant to the issue and therefore proper evidence, and if
likely to mislead, the defendant should ask instructions to obviate such
tendency and confine the evidence to its legitimate purpose.
3. Same — proof of ordinances. Where the mayor of the city testified
that the book from which ordinances were read, marked "City Records,"
was the original record of the city wherein was recorded all city ordi-
nances; that it was kept in the office occupied by the city clerk and him-
self, and he had access to it : Held, the ordinances were sufficiently proved
to permit them to be read in evidence, without proof of their publication.
4. Witness — opinion of inadmissible. Where a witness had stated that
there was a thin coating of ice throughout the city, his opinion as to
whether it increased the difficulty of passing over the sidewalks was in-
admissible, as it was for the jury to draw conclusions on that question
from the evidence before them without the aid of the witness.
5. Sidewalks — out of repair — notice. Where a sidewalk had been in
the condition it was when the accident occurred, for one year and nine
156 City of Rockford v. Hildebrand. [Sept. T.,
Statement of the case.
mouths, it was not such error in the court in giving an instruction that, if
the jury believed the sidewalk had been in an unsafe condition an unrea-
sonable length of time, as would reverse, although it omitted a requirement
that they should find the city had notice of its condition. Notice, actual
or constructive, will be implied.
6. Instructions. Where the evidence showed that the party injured
was, at the time, walking as he usually did, it is not error to modify an
instruction b3T striking out a portion of it which stated that such manner
of walking was no evidence of care on the part of plaintiff, and it is not
error to refuse an instruction which contained a similar statement. It, was
not a question of law, but of fact, to determine whether his manner of
walking did, or did not, prove anything.
7. Diligence — on part of plaintiff . If the sidewalk where the accident
occurred, and all of the streets, were unusually icy, and it was more than
usually difficult to walk on them, and the accident occurred in the night
time, it was no doubt the duty of plaintiff to use a higher degree of care
and caution than he would under ordinary circumstances. Common or
ordinary diligence is that degree of diligence most generally exercised by
men in respect to their own affairs, and not that of any one man in par-
ticular. And the question, whether due care and caution have been exer-
cised, is one of fact and not of law, and to be left to the jury.
8. Cities — their liability under charter. Where charters of cities give
them the power to cause suitable sidewalks to be made and to keep them
in repair, and make adequate provision for so doing, the exercise of the
power follows as a duty. Where city authorities are clothed with a power
which concerns the public interest, the execution of the power may be
insisted upon as a duty which the corporation is bound to fulfill. Nor
does it absolve them from its performance by reason of the charter requir-
ing the lot owners to build sidewalks, as the city has control of them, and
the charter recognizes the liability of the city to damages and gives it an
action over against the owner of the adjacent lot.
Appeal from the Circuit Court of Winnebago county; the
Hon. William Brown, Judge, presiding.
This was an action on the case, brought by appellee in the
Winnebago circuit court, against appellant, to recover for
injuries sustained from a fall occasioned by a defect in a side-
walk in the city. The declaration contained four counts in
the usual form, to which the defendant pleaded not guilty.
The case was tried at the January term, 1871, by the court
and a jury, resulting in a verdict in favor of plaintiff for §1500.
1871.] City of Rockford v. Hildebrand. 157
Opinion of the Court.
After overruling a motion for a new trial, the court below ren-
dered judgment on the verdict, and the case is brought to this
court by appeal and errors are assigned on the record.
Mr. C. M. Brazee, for the appellant.
Messrs. Crawford & Marshall, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court :
The first error assigned on this record is, that the verdict is
against the evidence.
It is urged that the evidence is insufficient, as showing
either negligence on the part of the city or that there was the
exercise of ordinary care on the part of the plaintiff.
The defect complained of as the cause of the alleged injury,
was in the connection of the sidewalk with an alley crossing.
At their intersection the alley was some six or eight inches
below the level of the sidewalk, and a sloping plank was set
from the sidewalk on to the alley crossing at an angle of
about forty-five degrees. The injury was caused by the slip-
ping of the plaintiff's foot in stepping on to this inclined
plank as he was passing along the sidewalk in the night time,
in the month of January, when there were snow and ice upon
the ground.
It is said that inequalities of this nature and extent, at
alley and street crossings, are customary not only in this but
all cities, and of necessity must exist; and that negligence is
not imputable to the city by reason of such a defect.
The duty resting upon cities to keep their streets and side-
walks in a safe condition for persons passing along and over
them, it is true, does not import that they are to keep them
absolutely safe so as to preclude the possibility of accident or
injury, but they are bound to exercise ordinary care and dili-
gence to keep them reasonably safe.
The street upon which the sidewalk in question was laid,
appears to be the principal business street of the city, though
158 City of Rockfoud v. Hildebrand. [Sept. T.,
Opinion of the Court.
near the limit of the business portion of it ; and as to any
necessity existing for this slope in the walk, the uneven ness
appears to have been obviated subsequently at quite a slight
expense by raising the alley crossing to a level with the side-
walk.
The plaintiff, as testified to by him, appears, at the time of
the accident, to have been "walking along as he always
walked," no faster than usual ; and without further reviewing
the evidence Ave will say that, after a careful consideration of
it, in view of every point urged as denoting either want of
ordinary care on the part of the plaintiff or the absence of
negligence in the city, our conclusion is that there is evidence
to sustain the finding of the jury, and we do not feel warranted
in disturbing it as being unsupported by the evidence.
It is next objected that the ordinances of the city introduced
in evidence were improperly admitted ; that they were irrel-
evant to the issue and tended to mislead the jury.
They all tended to show that the sidewalks of the city were
constructed under its authority, and that the city had taken
them and its streets under its cognizance and control, and so
far they were testimony relevant to the issue. City of Cham-
paign v. Patterson, 50 111. 62 ; The City of Joliei v. Verley, 35
111. 59.
There seems to have been an unnecessary multiplication of
this species of proof. But so long as it was pertinent to any
point involved in the issue, the objection to its admission on
the ground of irrelevancy and immateriality is not well taken.
Any danger that the jury might be misled by the testimony,
might have been guarded against by asking instructions from
the court restricting its effect to the purpose for which alone
it could be introduced.
The objection that two of the ordinances were not suffi-
ciently proved to be such, was not well taken.
The mayor of the city testified that the book from which
they were read, marked "City Records," was the original or-
dinance record of the city of Rockford, wherein was recorded
1871.] City of Kockford v. Hildebrand. 159
Opinion of the Court.
all city ordinances ; that the book was kept in the office where
the city clerk and himself stayed, and he had access to it. We
think this was sufficient to warrant the introduction in evi-
dence of the ordinances as recorded in said record book, and
without proof of their publication. As against the city, they
were, at least, prima facie evidence of what they purported
to be.
The witness Andrew, after stating that, as near as he could
recollect, there was a thin coating of ice on the walks through-
out the city at the time, was asked by defendant's counsel this
question : "Was not the walking on the walks of the city, in
consequence of that ice, more difficult than usual?" which, on
the plaintiff's objection, the court did not permit to be an-
swered, and this is assigned as error. We think the question
an improper one, as calling for the opinion of the witness
where it was not admissible. The witness had testified to the
facts, and it was for the jury to draw the inference and form
the opinion as to the matter inquired of.
A common objection is taken to most of the plaintiff's in-
structions, that they lay down the rule of the city's liability
to be, permitting the sidewalk to remain in an unsafe condi-
tion for an unreasonable length of time, and leaving out, as
an element of its liability, notice on the part of the city of the
condition of the walk.
The walk had been constructed and had remained in the
condition it was, at the time of the accident, a year and nine
months previous thereto, and there was notice to the city, act-
ual or constructive, without question. As the city did not
construct the sidewalk, notice of its condition was requisite to
charge the city with liability, but in view of the evidence,
leaving no fair question on the point before the jury, we con-
sider that, giving the instruction in the form asked, without
the qualification of notice, could have worked no harm to the
defendant, and that there was no substantial error in so giv-
ing it without such qualification.
160 City of Rockford v. Hildebrakd. [Sept. T.,
Opinion of the Court.
It is objected that the court erred in modifying the defend-
ant's fifth instruction by erasing therefrom the words, "And
testimony that the plaintiff ' was icaJking as he always walked,-
at the time of the injury, is not evidence that he was using due
care;" and in refusing defendant's fourteenth instruction
which contained the same words, predicated upon the hypoth-
esis that the walk was in an unusually icy and slippery con-
dition, and that the accident happened in the night time.
There is no doubt that, under the facts supposed in the last
instruction, a higher degree of care and caution would be re-
quired than under different circumstances. But the error in
the instructions, as asked, consists in making a legal standard
of this plaintiffs mode of walking.
Common or ordinary diligence is that degree of diligence
which men in general exert in respect to their own concerns,
and not any one man in particular. Surely, judicial notice is
not to be taken of the plaintiffs manner of walking. There
may be that degree of circumspection in his ordinary walk
that it would come up to the strictest requirement of care in
any, the most dangerous, condition of the sidewalk.
Whether the exercise, on the occasion of the injury in ques-
tion, under all the circumstances supposed', of only the plain-
tiffs own usual care and caution in walking, did not amount
to the use of due care and caution, was not a question of law
but one of fact, which was peculiarly within the province of
the jury to decide.
Defendant's tenth refused instruction was a proper one, but
it was embraced in others which were given.
Another claim set up by the defendant, which was denied
as a ground of defense by instruction and otherwise, is that,
under its charter, there is no liability on the part of the city
to make, or keep in repair, sidewalks, but the obligation rests
solely upon individual lot owners.
The charter gives the authorities of the city the power to
cause sidewalks to be built and kept in repair, and makes
1871.] City of Kockford v. Hildebrand. 161
Opinion of the Court.
provision for the adequate means to that end. The exercise
of the power follows as a duty.
Where the city authorities have been clothed by statute
with power to do an act which concerns the public interest,
the execution of the power may be insisted on as a duty,
which the corporation is bound to fulfill. The Mayor, etc.,
of the City of New York v. Furze, 3 Hill, 612 ; City of Bloom-
ington v. Bay, 42 111. 503 ; Browning v. The City of Springfield,
17 111. 143 ; and see Conrad v. The Trustees of the Village of
Ithaca, 16 N. Y. 159, and case in note, p. 161.
The charter undertakes to impose upon lot owners the costs
and charges of making and keeping in repair sidewalks, and
the duty of keeping them in a safe condition ; and without
reference to the question whether such charge and duty could
be rightfully so imposed, it is sufficient to say the charter
does not undertake to exempt the city from liability in this
respect. So far from it being the intent of the charter that
this duty should be exclusively upon the lot owners, it recog-
nizes the existence of the city's liability in providing that, if
the city shall, at any time, be subjected to any damages in
consequence of any defect in any sidewalk, or its being out of
repair, the owner of the adjacent premises shall be liable there-
for, and the same may be recovered by a suit, etc.
The instructions are voluminous, and without further pass-
ing upon them specifically, we think, after a careful examina-
tion of them all, those refused as well as given, that those
given fairly presented the law applicable to the case, and no
essential error is perceived in the action of the court in either
giving, modifying or refusing instructions.
The judgment must be affirmed.
Judgment affirmed.
11— 61st III.
162 T., P. & W. R. W. Co. v. Conroy. [Sept. T.,.
Syllabus. Opinion of the Court.
The Toledo, Peoria & Warsaw Railway Co.
V.
Michael Conroy.
1. Negligence in railroads — notice. In an action against a railway-
company to recover damages for the death of one of its employees, alleged
to have been occasioned by the falling of a bridge, an instruction which
informs the jury that, if the deceased was in the employment of the com-
pany, was in the line of his duty when crossing the bridge, that the tim-
bers of the bridge were decayed and unsafe, and by reason thereof broke
down, and the death of such employee was occasioned thereby, the com-
pany was liable, is erroneous, because it excludes notice of the condition
of the bridge to the employees of the company, or that they, by the high-
est degree of diligence consistent with the operation of the road, might
have known of the defects. A railroad company is bound to use such dili-
gence, yet it is not an absolute insurer and can not be held liable for de-
fects that such diligence would not detect.
2. Actual knowledge of such defects is not necessary to render a rail-
way company liable; it is enough if the company might, by the use of
such diligence, have been informed, but when it did not know and could
not have learned the timbers were defective and unsafe by such diligence,
it can not be held responsible.
Appeal from the Circuit Court of Peoria county ; the Hon.
Sabin D. Puterbaugh, Judge, presiding.
Messrs. Ingersoll & McCune, for the appellant.
Mr. H. W. Wells, for the appellee.
Mr. Chief Justice Lawrence delivered the opinion of
the Court:
This was an action in which the administrator of John Con-
roy recovered damages against a railway company for injuries
received by him while in the employ of the company as a fire-
man, by the falling of a railway bridge. The evidence as to
the condition of the bridge is contradictory and we shall not
discuss it; as the case must go to another jury for error in the
1871.] T., P. & W. R. W. Co. v. Conroy. 163
Opinion of the Court.
instructions. The third instruction given for the plaintiff
was as follows :
"In this case, if the jury believe, from the evidence, that
John Conroy Avas a fireman in the employ of the defendant,
and was in the line of his duty on an engine crossing the
bridge in question, and if they further believe, from the evi-
dence, that the timbers of the bridge were decayed and un-
safe, and for that reason broke down, and that the death of
John Conroy was occasioned by injuries received by the
breaking of said bridge, and that the said John Conroy left
next of kin, then the defendants are liable, and the jury should
find for the plaintiff."
This instruction would make the company liable for inju-
ries resulting from a defective bridge, independently of the
question whether the agents of the company had notice of the
defects, or might have had knowledge of them by the exercise
of the highest degree of diligence consistent with the opera-
tion of the road. This instruction was, in this respect, erro-
neous. The rule is settled that, while a railway is bound to
use the degree of diligence just stated in furnishing to the
public a safe road-bed, yet it is not an absolute insurer, and
can not be held liable for defects of which such diligence
would not inform it. Actual knowledge of the defect is not
necessary. It is sufficient if the company might have been
informed by the use of such diligence as the law imposes up-
on it, but where it did not know and could not have informed
itself of the defect, we do not see how it can be held respon-
sible. In this case, the question was as to the soundness of
bridge timbers, and it was^ clearly important that the instruc-
tion should be qualified in the manner indicated. Some of
the witnesses who testify that the broken timbers were de-
cayed, also say they were externally sound ; and admitting
the fact of decay, it became important to determine whether
it was of such a character that the company could have dis-
covered it by the exercise of proper diligence.
164 Smith et al. v. Frazer et al. [Sept. TV,
Syllabus.
It may possibly be said that decay in the timbers of a
bridge, being necessarily gradual, could always be ascertained
by the use of due diligence. That may be so, but we do not
feel justified in assuming it as a legal presumption. It is
wholly a question of fact, and should not have been withdrawn
from the jury by the instructions.
For giving the instruction in question without qualifica-
tion, the judgment must be reversed.
The appellant also complains of the refusal of certain in-
structions asked by him, but as far as they were correct they
were substantially comprised in the sixth given for him.
Judgment reversed.
George S. Smith et al.
v.
Perry Frazer et al.
1. Evidence — variance — error must he shown. Where it is assigned for
error that there was a variance between the bond declared on and that
offered in evidence, the court can not say that the error exists when, from
any cause, the bond is not copied into the bill of exceptions. It is not
enough that error is alleged, but it must be shown to exist before a re-
versal will be had.
2. Transcript — authentication by a justice of the peace. Where the cer-
tificate of a justice of the peace to his transcript was in these words, "That
the foregoing transcript and papers contain a full statement of all the pro-
ceedings had before me," although not in the language of the statute, still
it is, in substance, sufficient.
3. Evidence— judgment — variance. Where a declaration averred, in a
suit on an appeal bond, that the defendants had not paid the judgment
recovered before the justice, nor the costs of the circuit court on the dis-
missal of the appeal, amounting to $11.45 — the fee bills showed $11.05
costs in the justice's court, and $7.45 in the circuit court— either of these
sums being variant from the amount set out in the declaration — and as it
was a matter of description of the judgment appealed from, it was error to
admit it in evidence.
1871.] Smith et at. v. Frazer et al. 165
Opinion of the Court.
___ »
Appeal, from the Circuit Court of Peoria county; the Hon.
Sabin D. Puterbaugh, Judge, presiding.
Messrs. Cooper & Moss, for the appellants.
Messrs. McCulloch & Rice, for the appellees.
Mr. Justice Walker delivered the opinion of the Court :
It is first insisted that the court below erred in admitting
the appeal bond in evidence upon which the suit was brought,
because of a variance between it and that described in the
declaration. Upon a reference to the bill of exceptions in the
record, we find it states that an appeal bond was offered in
evidence by appellees, and to the reading of which appellants
objected upon the ground of insufficiency and for a variance.
But the bond is not copied into the record, and the clerk states
that it was not found. This being the case, the assignment
of that error is not well taken. Unless a copy of the bond
was in the bill of exceptions, we are unable to say whether
there was any well founded objection to its admission. On the
contrary, the presumption must be indulged that the court
below decided correctly. It is not enough to allege error, but
it must be shown to exist before we can reverse.
It is next objected that the transcript of the justice of the
peace was improperly admitted in evidence, because there is
wanting a proper attestation. The officer certifies, "that the
foregoing transcript and papers contain a full statement of all
the proceedings had before me." The language of the statute
is, that he shall certify it to be "a full and perfect state-
ment/' etc. And the objection taken is, that the word "per-
fect" is omitted. The omission of that word does .not, in the
slightest degree, affect the meaning of the certificate. If the
transcript is full it must be perfect, in the sense in which the
term is employed. In substance, this certificate is sufficient,
and that is all the law requires. It seems to us that it Would
be hypercritical to hold this certificate essentially defective for
166 Smith et al v. Frazer et al. [Sept, T.,
Opinion of the Court.
the lack of the word in that connection. This objection can
not avail.
It is next objected that there was a variance between the
judgment described in the declaration and that produced in
evidence. It is not claimed that there is any misdescription
of the judgment itself, recovered before the justice of the
peace, as that is accurately stated. But the declaration avers
that the defendants had not paid the judgment nor the costs
recovered before the justice of the peace, nor the costs recov-
ered in the circuit court on the dismissal of the appeal,
amounting to the sum of $11.45. On producing the fee bills,
they showed $11.05 before the justice of the peace, and $7.45
in the circuit court, which sums, together with the judgment
before the justice of the peace, with accruing interest, make
the precise sum recovered in the court below. The language
of the declaration will bear no other construction than that
the two fee bills united amounted to $11.45, and hence there
is a variance of $7.05. But if it could be held that the sum
named was intended to apply to the costs of the circuit court,
which is the last named before the amount, then there is a
variance of $3.60. So that in any view that can be taken of
the case there was a material variance. Or, if it should be
contended that the amount of the justice's costs were not
claimed in the declaration, then the court erred in assessing
SI 1.05 too much damages. And this variance is material, as
the averment in the declaration is descriptive of the amount
of the judgments for costs. Had no amount been stated, then
it might have been otherwise. But for this error, the judg-
ment of the court below is reversed and the cause remanded.
Judgment reversed.
1871.] Bell v. Mallory. 167
Syllabus. Opinion of the Court.
Solyman Bell
V.
Allen F. Mallory.
1. Riot — what constitutes. A party claiming to have purchased a colt,
procured the assistance of two other persons to drive the animal from the
range into the inclosure of the owner, and, against the remonstrance of the
latter, attempted to secure the colt and take it away, one of the confeder-
ates being armed with a pistol and threatening the owner upon his inter-
fering to prevent the property from being taken out of his possession :
Held, these acts constituted a riot.
2. Same — all are liable. In such a combination, when proved, the un-
lawful acts of one are the acts of all the confederates.
Appeal from the Circuit Court of Grundy county ; the
Hon. J. McRoberts, Judge, presiding.
Mr. B. C. Cook, for the appellant.
Messrs. S. W. & T. B. Harris, for the appellee.
Mr. Justice Breese delivered the opinion of the Court :
This was an action on the case, in the Grundy circuit court,
by Mallory against Bell, for a malicious prosecution, and dam-
ages for the plaintiff.
The declaration alleged that defendant falsely, maliciously,
and without any reasonable cause whatever, by complaint
under oath, charged the plaintiff with having, in conjunction
with two other persons, committed a riot by entering the prem-
ises of the defendant and using violent and harsh language
toward him, and by showing a pistol and threatening bodily
injury to the defendant, and upon such charge, falsely, mali-
ciously, and without any reasonable or probable cause, pro-
cured a warrant for plaintiff's arrest, and he was compelled to
enter into a recognizance to appear at court and answer to the
charge; that he did appear; that no indictment was found
against him, and thereupon he was discharged by the court,
168 Bell v. Malloey. [Sept. T.,
Opinion of the Court.
averring that defendant had no reason to suspect or believe that
plaintiff was guilty of a riot j that he was put to great ex-
pense, etc. The damages were laid at ten thousand dollars.
The jury awarded the plaintiff one thousand eight hundred
and thirty dollars in damages. On a motion for a new trial,
the court required the plaintiff to remit one thousand two hun-
dred and thirty dollars, and rendered judgment for the bal-
ance, being six hundred dollars.
To reverse this judgment the defendant appeals.
The gravamen of this action, as stated in the declaration, is,
that the plaintiff, in conjunction with two others, was charged
by the defendant with the commission of a riot, there being
no reasonable or probable cause for the charge. This is the
gist of the action, and must be determined by the evidence in
the record, and it is so admitted by counsel for appellee.
We have looked into the record and examined the testimony
carefully, and are impressed with the conviction that, if prob-
able cause for an arrest and a criminal prosecution can ever
be established on a charge of a riot, it is most satisfactorily
established in this case, and the wonder is, how the jury could
have found differently, under the instructions of the court.
In our criminal code, a riot is defined to be the doing of an
unlawful act by two or more persons with force or violence
against the person or property of another, with or without a
common cause of quarrel, or even do a lawful act in a violent
and tumultuous manner. R. S. ch. 30, sec. 117.
It was held by this court in Dougherty v. The People, 4 Scam.
179, that an unlawful act must be done, which, in that case,
was charged to have been done on the person of another.
Here the unlawful act charged to have been done was not
only against the person of Bell, but against his property.
What are the facts in the record ? It is unnecessary to re-
capitulate them here. They are full to the point that these
three men, Henry, Crawford and Mallory, were banded to-
gether to take the colt from the possession of appellant — he
1871.] Bell v. Mallory. 169
Opinion of the Court.
claiming it as his own, and, for aught that appears in the rec-
ord, was his own absolute property — with force, if necessary,
one of the party, Henry, being armed with a revolver, and
they fully competent to carry into effect their determination.
The parties find the colt in the prairie, feeding, and, without
any authority, drive him, with other horses in the gang, to
appellant's enclosure, and, without any authority, proceeded
to let down the bars so that he might be captured, Mallory
having brought a rope with him out of which to make a
halter. Appellant appeared on the scene and forbade the act,
and forbade Henry from taking the colt, and ordered the par-
ties off his premises. The day before, appellant had told
Henry, who had come to his residence, he could not have
the colt, when Henry told him to go away, and if he did not,
he would slap him in the mouth, and that he would have the
colt anyway. When, on the next day, Henry came with his
confederates, Crawford and Mallory, and drove the colt up to
get him into the yard, so that he could be haltered, appellant,
persistently forbidding the taking, set his dogs on the colts,
and they got them out of their reach. Henry halloed to ap-
pellant not to run the colts, and ordered him to stop, and ran
towards him, shouting, " Stop!. You will have to stop some
time or other. If you don't stop I will stop you."
This from a man armed with a revolver, backed by his con-
federates, bent on an unlawful purpose, was a threat of fearful
import. These parties had been guilty of one unlawful act in
driving the colt out of his "range," and of another in enter-
ing upon appellant's premises in the manner they did ; of an-
other in letting down the bars of appellant's enclosure, at the
same time threatening to do another act equally unlawful, to
take property out of the custody of its lawful owner, in de-
fiance of his rights and against his earnest and repeated pro-
test. These confederates assumed to take the law into their
own special keeping, first deciding that Henry had a right to
take the colt at all hazards, and then entering the premises of
its owner as a posse, one of them armed, to take the property
170 Bell v. Mallory. [Sept. T.,
Opinion of tlie Court.
forcibly and against the will of the owner. If these do not
bring the case within the statutory definition of a riot, we are
at a loss to conceive a set of facts which would.
We forbear comment on the facts in detail. Grouping them,
they establish one of the most outrageous cases of contempt of
public law which has come before us.
There does not seem to be a palliating circumstance to
which appellee can resort for justification. It is true, he
feigns to believe, as he had no pistol or other deadly weapon,
and made no threats, he should not be responsible for the acts
of others. He has endeavored, and quite successfully in the
court below, to make himself a subordinate in the transaction,
and Henry and Crawford as the active participants, but the
proved facts show he was the moving spirit. He had pur-
chased this property from Henry ; he advised taking it by
force, if necessary ; he aided in driving the colt from the
range; he entered the premises of appellant with his confed-
erates; he was present aiding in letting down the bars; he had
the rope in his pocket with which to halter the colt. In such
a combination, when proved, the unlawful acts of one are the
acts of all the confederates. No one can escape the penalties
which may flow from such unlawful combinations.
In the view we have taken of the testimony in this cause,
we are well convinced appellee, Mallory, was guilty, with
Henry and Crawford, of a riot. Being so guilty, there was
probable cause for the arrest of appellee, and the jury should
have so found.
The case should go to another jury, and that it may, the
judgment of the circuit court is reversed and the cause re-
manded.
Judgment reversed.
1871.] Warren et al. v. Doolittle. 171
Syllabus. Opinion of the Court.
Henry Waeren et al.
v.
Eichard Doolittle.
1. Fraud— -false representations — matters of opinion. Where the pur-
chaser of an article seeks to set aside the sale on the ground of fraudulent
representations made by the seller, equity will not grant the relief merely
because of representations which are but matters of opinion or specula-
tive commendation as to the qualities of the thing sold.
2. In this case, as regards the matters of fact embraced in the represen-
tations made, it is held, that the proof shows no fraud which would au-
thorize a rescission of the contract.
Appeal from the Circuit Court of Will county; the Hon.
Josiah McRoberts, Judge, presiding.
Messrs. Wilder & Davis, for the appellants.
Messrs. Randall & Fuller, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court :
Henry Warren, one of the appellants, having obtained let-
ters patent for an improvement for making compound chemi-
cal soap, sold, on the 12th day of April, 1864, to the appel-
lee, Richard Doolittle, in conjunction with one Daniel C.
Young, the right secured by the letters patent, for the city of
Chicago and the county of Cook, and this bill was filed by
Doolittle, March 28th, 1868, to set aside the sale on the
ground of fraudulent representations.
Most of the alleged representations were mere matters of
opinion or speculative commendation as to the qualities of the
soap, against which equity will not relieve.
There were, really, but two matters of fact embraced in the
representations as to which proof was adduced, which were,
that the soap was made without lye and grease, and that it
would not shrink more than ordinary soap.
172 Warren et al. v. Doolittle. [Sept. T.,
Opinion of the Court.
The soap was confessedly made without lye or grease, as
such. Brown's opodeldoc was used in the making of it, and
Warren so informed the purchaser. This contained the above
named ingredients ; but that article, though containing those
ingredients, was something different from either in a simple
state.
Besides, it is not apparent wherein consists the damage to
result from such a false representation. These ingredients
seem to enter into the composition of all soaps, and, accord-
ing to the proof, the more of them the better the article.
The only real ground of complaint as to the quality of this
soap, appears, from the evidence, to be its liability to shrink.
When green, it seems to possess peculiar qualities of useful-
ness. It appears, from the testimony, to be the nature of all
soaps to shrink considerably. After an examination of all
the testimony on this head, we do not think it discloses any
such substantial difference in this respect between this and
other soaps, as to justify the conclusion that the representation
of Warren, that the soap would not shrink more than ordi-
nary soap, was a false and fraudulent one.
There were some facts disclosed in the evidence which bear
stronger testimony as to the merits of the subject matter of
this patent right than the opinions of interested witnesses.
Mrs. Codding and Mrs. Holland gave testimony on behalf
of the complainant in depreciation of the article, but on their
cross-examination it came out that, after some six months'
personal experience in the making, use and sale of it, they had
given their written certificates in commendation of its good
qualities, the former testifying that her's was essentially true ;
and Mrs. Holland, after having purchased the patent right
for Sauk county, Wisconsin, and making and selling the soap
under it for some time, purchased the right for Milwaukee
county.
The witness Greenman, a druggist at Sandwich, 111., testi-
fied for the defendant in favor of the article, and gave the fact,
in confirmation of his testimony that, after having bought the
1871.] Warren et al. v. Walbridge, Adm'r, etc., et ah 1 73
Syllabus.
patent right for DeKalb county, and manufacturing and sell-
ing the soap under it, he purchased the right for the rest of
the State except seventeen counties, and paid for it $6500.
Doolittle by no means dealt with Warren wholly upon
faith in the representations of the latter. He saw the article
made by Warren in his presence, the latter showing him the
ingredients. He had seen a notice of the patent in the "Sci-
entific American." He says he was induced to purchase by
the experiments of Warren and his statements, and by what
Hillis said about it ; and that if Young, the joint purchaser
with him, had not purchased, probably he should not.
The delay, too, in bringing this suit — about four years after
the purchase — affords an unfavorable inference against the
complainant.
We are of opinion the proof shows no fraud which would
authorize a rescission of the contract.
The decree of the court below will be reversed and the
cause remanded.
Decide reversed.
Henry Warren et al.
V.
Eliztjr Walbridge, Adm'r, etc., et al
Fraud— false representations — laches. Where the purchaser of an article
sought to set aside the sale on the ground of fraudulent representations
made by the seller, it was held, diat, in addition to the fact that the plaintiff
foiled to make out the fraud alleged, the fact that, for several years after the
making of the contract, it was acted upon by the purchaser and his repre-
sentatives, with a knowledge of all the facts, and treated as still subsisting,
afforded an additional reason why a court of equity should not interfere.
Appeal from the Circuit Court of Will county; the Hon.
Josiah McRoberts, Judge, presiding.
174 Mitchell, Adm'r, v. Town of Fond du Lac. [Sept.T.,
Syllabus.
Messrs. Wilder & Davis, for the appellants.
Messrs. Van Arman & Vallette, for the appellees.
Per Curiam : This was a bill in chancery, filed by the
appellees against the appellants, to set aside a contract for the
sale of the same patent right, as in the case of Warren et al.y.
Doolittle, ante, for the counties of Milwaukee and Sauk, in the
State of Wisconsin.
The two cases are essentially alike in their main features,
except that, in the present case, there is proof that, for several
years after the making of the contract, it was acted upon by
the purchaser of the patent right and his representatives, with
a knowledge of all the facts, and treated as still subsisting,
which affords an additional reason why a court of equity
should not interfere. 1 Story Eq. Ju. sec. 203 a ; Ormes v.
Beadel, 2 De Gex, F. & J. 236 ; Vigars v. Pike, 8 Clark &
Finn, 562.
The opinion in that case governs the decision of this.
The decree of the court below is reversed, and the cause
remanded for further proceedings in conformity with this
opinion, and that in Warren et at. v. Doolittle.
Decree reversed.
Eli as Mitchell, Adm'r,
v.
The Town of Fond du Lac.
1. Instructions — must be applicable to the case. Although instructions
may contain correct legal propositions, still it is not error to refuse them
if they are not applicable to the case.
2. Same — containing legal propositions. It is error to give instructions
to the jury which require the jury to rind and determine legal proposi-
tions. The court should direct the jury what the law is on the facts the
1871.] Mitchell, Adm'r, v. Town of Fond du Lac. 175
Opinion of the Court.
evidence tends to prove, or instruct them as to what the law is if they
find the facts to be true; or what facts must be proved before the plaintiff
can recover.
Appeal from the Circuit Court of Tazewell county ; the
Hon. Charles Turner, Judge, presiding.
Messrs. Williams & Elliott, for the appellant.
Mr. C. A. Roberts and Mr. N, W. Green, for the appellee.
Mr. Justice McAllister delivered the opinion of the
Court :
This was assumpsit, brought by appellant as administrator
of the estate of William Mitchell, deceased, against appellee,
to recover for the support and maintenance by the intestate in
his lifetime of one Eliza McFerren, from the 23d of March,
1857, to the 23d of January, 1858, said Eliza being an alleged
pauper and resident of the said township.
The jury rendered a verdict for appellee, and the court
overruled the motion of appellant for a new trial.
Several grounds are relied upon for reversal :
First — That the court erred in overruling the motion for a
new trial.
Second — The court erred in refusing appellant's second in-
struction.
Third — In giving instructions on behalf of appellee.
The first and second grounds are untenable. We have
looked into the evidence preserved in the bill of exceptions,
and find it of so indefinite a character that we can not say
that the verdict was manifestly against the weight of the evi-
dence. Jf
The second instruction on behalf of appellant, which was
refused, contains no proposition of law applicable to the case.
There Avas no question of the disability of infants involved in
the case. Appellant brought the action in the character of
administrator, and it was wholly immaterial, under the cir-
cumstances of this case, how long he had been under disability.
176 Mitchell, Adm'r, v. Town of Fond dtj Lac. [Sept.T.,
Opinion of the Court.
The first instruction on behalf of appellee is as follows :
"If the jury believe, from the evidence, that the person,
Eliza McFerren, was boarded and lodged and furnished with
clothing by William Mitchell (whose administrator brings
suit) from the 1st day of March, A. D. 1857, until his death
in 1858, yet, unless they further believe, from the evidence,
that during that time the said Eliza McFerren was a pauper
for whose support the defendant was legally liable, or for
whose support the defendant had, by its proper officer, con-
tracted to pay the said William Mitchell for during said time,
they will find for the defendant."
This instruction submits to the determination of the jury
two questions of law, without any aid from the court, viz. :
First — What shall constitute the legal liability of a town to
support a pauper?
Second — Who is the proper officer to make a binding con-
tract on the part of the town for such support by another ?
The impropriety of leaving questions of law to the deter-
mination of the jury has been so often decided by the courts
that the citation of authorities seems unnecessary.
The court should have instructed the jury as to what facts
were indispensable to create the legal liability of the town for
the support of the person in question, and then told them that
if such facts were not established by the evidence, to find for
the defendant; and should likewise have informed the jury
who the proper officer to bind the town for such support was,
and what would be necessary to constitute a contract express
or implied, and then left it for them to say whether such offi-
cer acted in the premises, and if he did nothing to create a
contract within the definition given, that then they should
find for the defendant. A majority of the court think the
instruction erroneous.
For this error, the judgment of the court below must be
reversed and the cause remanded.
Judgment reversed.
1871.] McKanna et al v. Merry. 177
Syllabus.
John McKanna et al
v.
Charles H. Merry.
1. Infant — necessaries — traveling expenses. Where an infant, against
the objections of her guardian, went to California, and another person fur-
nished money necessary to pay the expenses of the trip, and afterwards
sued to recover the money from the ward and her husband, she having
subsequently married, and on the trial the court instructed the jury that
what were necessaries depended upon circumstances ; if the going of the
ward to California was prudent and proper under the circumstances, and
plaintiff advanced money necessary to take her there, and the trip was for
her benefit, then it was for the jury to say whether the money was ad-
vanced for necessaries : Held, that this instruction was wrong, there being
no positive rule as to what are necessaries. Whether articles of a certain
class or kind are such as infants would be liable for, or whether cer-
tain kinds of expenditures are necessaries, must be judged of by the court,
but whether a particular class are suitable to the condition and estate of the
infant, is for the determination of the jury. The court should, in the in-
struction, have defined what constitutes necessaries.
2. Horses, saddles, bridles, pistols, liquors, chronometers, etc., have gen-
erally been held not to be necessaries, and no case is found that money ad-
vanced for traveling expenses, under the circumstances of this case, is
necessary.
3. Guardian — 7iis duty. It was the duty of the guardian to superin-
tend the education and nurture of his ward, and apply the rents first, and
next the interest on moneys, for the purpose. He was the judge of what
were necessaries, if he acted in good faith, and a third party had no right
to usurp the rights and duties of the guardian, even if the money was, in
some sense, a benefit, and the trip prudent and proper.
4. Same — necessaries. If the guardian, in good faith, acting for the
best interest of the ward, furnishes means suitable to her age, station in
life, and with reference to her estate, then the infant would not be liable.
Appeal from the Circuit Court of JoDaviess county ; the
Hon. William Brown, Judge, presiding.
Mr. Louis Shissler, for the appellants.
Messrs. Sheean & Weigley, for the appellee.
12— 61st III.
178 McKanna et al. v. Merry. [Sept. T.,
Opinion of the Court.
Mr. Justice Thornton delivered the opinion of the Court :
In 1864, Kate Feehan, since intermarried with McKanna,
accompanied appellee and wife on a trip from Illinois to Cal-
ifornia, by water. Her passage money was paid by appellee.
Kate was then an infant, and under the control of her guar-
dian, who was desirous that she should attend school for
another year, and disapproved of the trip.
The only proof as to the value of her estate is, that it con-
sisted of an undivided one-third of some realty, which, after
her marriage, and a few years after the advancement of the
money, was sold for §3250.
There is no proof that this trip was necessary for her health,
or that it subserved any purpose other than pleasure, or as
company for the wife of appellee.
The court gave for appellee the following instruction :
"What are necessaries depends upon the circumstances of
the case. If the going of defendant, Kate, to California was
prudent and proper, under the circumstances proved, and the
plaintiff advanced money necessary to take her there, and the
same was for her benefit, then it is for the jury to determine
whether such advances of money were for necessaries."
There is no positive rule by means of which it may be de-
termined what are, and what are not, necessaries. Whether
articles are of a class or kind for which infants are liable, or
whether certain subjects of expenditure are necessaries, are to
be judged of by the court. Whether they come within the par-
ticular class, and are suitable to the condition and estate of
the infant, is to be determined by the jury as matter of fact.
For example, suppose this trip had been to Europe, involving,
in time, several years, and an expenditure of thousands of dol-
lars, would any court hesitate to decide that the money thus
advanced did not constitute necessaries? Chitty on Con. 141 a.
note 2; 1 Parsons Con. 296; Beeler v. Young, 1 Bibb, 519; 1
Am. Leading Cases, 248.
1871.] McKanxa et al. v. Merry. 179
Opinion of the Court.
The court, in the instruction, merely informed the jury that,
if the trip was prudent and proper, and that the money was
for her benefit, then the jury must determine whether such ad-
vances of money were for necessaries. There was not a par-
ticle of proof to enable the jury to determine as to the pro-
priety or impropriety, the prudence or imprudence of the trip,
or that the advancement of the money was for the benefit of
appellant.
Even if there had been such proof, the instruction was
wrong. The court should have defined necessaries in some
manner. Blackstone defines necessaries to be " necessary
meat, drink, apparel, physic," and says that an infant may
bind himself to pay " for his good teaching and instruction,
whereby he may profit himself afterwards." The articles fur-
nished, or money advanced, must be actually necessary, in the
particular case, for use, not mere ornament, for substantial
good, not mere pleasure ; and must belong to the class which
the law generally pronounces necessary for infants.
The courts have generally excluded from the term " neces-
saries/' horses, saddles, bridles, pistols, liquors, fiddles, chro-
nometers, etc. It has been held, however, that if riding on
horseback was necessary to the health of the infant, the rule
was different.
"We have been referred to no case, and, after a thorough ex-
amination, have found none, in which it has been held that
moneys advanced for traveling expenses, under the circum-
stances of this case, were necessaries.
The court should have instructed the jury as to the classes
and general description of articles for which an infant is bound
to pay. Then the jury must determine whether they fall
within any of the classes, and whether they are actually neces-
sary and suitable to the estate and condition of the infant.
It may be proper to advert to another principle. The infant
had a guardian, who had charge and management of her
estate, which consisted entirely of realty. It was the duty of
the guardian to superintend the education and nurture of his
ISO Frazier v. Gates. [Sept. T.,
Syllabus.
ward, and apply to such purpose, first, the rents and profits of
the estate, and next the interest upon the ward's money. This
is the positive command of the statute, and he was liable, upon
his bond, for non-compliance. He was the judge of what
were necessaries for his ward, if he acted in good faith.
A third party had no right to intervene and usurp the rights
and duties of the guardian. Even if the money paid was, in
some sense, for the infant's benefit, and the trip was prudent
and proper, yet, if the guardian, in good faith, and in the ex-
ercise of a wise discretion, and with reference to the best inter-
ests of his ward, supplied her wants and contributed means
suitable to her age and station in life, and in view of her
estate, then the infant would not be liable for the money, as
necessaries. Beeler v. Young, supra; Kline v. U Amoureux, 2
Paige, 419; Guthrie v. Murphy, 4 Watts, 80; Wailing v. Tall,
9 Johns. 141.
AYe express no opinion as to the weight of the evidence, for
the reason that there must be a new trial.
The judgment is reversed for the errors indicated, and the
cause remanded.
Judgment reversed.
Andrew Frazier
v.
Seth Gates.
FoPvCip.ltc detainee— mortgage— foreclosure — ejectment — eviction — attorn-
ment. Where a party executed a mortgage on real estate to secure the
payment of a sum of money, remained in possession several years and till
foreclosure, and permitted the land to be sold for the taxes of the year in
which the mortgage was given, and the purchaser under the tax sale sued
in ejectment and recovered judgment against the mortgagor who failed to
give notice of the suit to the mortgagee, and a writ of possession was sued
1871.] Frazier v. Gates. 181
Opinion of the Court.
out and the plaintiff in ejectment was put in possession, and the mortgagor
leased the premises from the plaintiff in ejectment for one year, and when
the mortgage was foreclosed and the land purchased by the mortgagee, the
latter, after receiving a master's deed, brought forcible detainer, when the
recovery and eviction in the ejectment suit was set up as a defense : Held,
the facts showed collusion between the mortgagor and the holder of the
tax title, and that constituted no defense for the mortgagor, and he must
yield possession to his landlord.
Appeal from the Circuit Court of Mercer county ; the Hon.
Arthur A. Smith, Judge, presiding.
Mr. I. N. Bassett and Mr. J. C. Pepper, for the appel-
lant.
Mr. B. C. Taliaferro, for the appellee.
Mr. Justice Sheldon delivered the opinion of the Court :
This was an action of forcible detainer, brought by Gates
against Frazier to recover the possession of a certain lot of
land in the town of Keithsburg, under the act of 1861 giving
such action where lands have been sold under a judgment or
decree of court, and the party defendant thereto, after the
expiration of the time of redemption, refuses, after demand in
writing by the purchaser, to surrender possession thereof.
Gates had purchased the premises March 13, 1869, for
$3294, under a decree of foreclosure of a mortgage of them,
executed to him by Frazier, May 26, 1866, to secure payment
of the sum of $2500 in one year, with ten per cent interest,
and received the master in chancery's deed for the same, July
12, 1870.
It appeared in evidence that Frazier was living on the
premises before the making of the mortgage, and that he had
been living on them ever since, and that a demand in writing
had been made on him by Gates to surrender possession of the
property.
Frazier set up in defense a tax deed for the lot to Isaac N.
Bassett, dated July 20th, 1869, under a sale thereof May 27,
182 . Frazier v. Gates. [Sept. T.,
Opinion of the Court.
1867, for the taxes of 1866, a judgment in ejectment at the
October term, 1869, in favor of Bassett and against Frazier,
for the premises, and a writ of possession under it of the date
of November 11, 1869, with the sheriffs return thereon of
having executed the same by taking possession of the premises
and delivering the same to Bassett November 13, 1869, and
a lease thereof from Bassett to Frazier for the term of one
year from November 13, 1869.
It was agreed that Frazier did not notify Gates of the eject-
ment suit, and let judgment go against himself by default, and
that Gates did not have any knowledge of the pendency of the
ejectment suit.
At the June term, 1870, on motion of Gates and John H.
Gear, a new trial was granted in the ejectment suit on pay-
ment of costs.
This suit was commenced before a justice of the peace July
20, 1870, taken by appeal to the circuit court and there tried
by the court without a jury. The issue was found for the
plaintiff, Gates, and judgment rendered in his favor, from
which Frazier has prosecuted this appeal.
Had Frazier, the mortgagor, been the tenant of Gates, the
mortgagee, he would have been guilty of bad faith in not giv-
ing the latter notice of the pendency of the ejectment suit, and
could not refuse to deliver the possession to Gates on the
ground that he held under, or had acquired, the title of Bas-
sett, the plaintiff in ejectment, under the decision of this court
in Loive v. Emerson, 48 111. 161. It is there said, if the ten-
ant neglects his duty to give such notice under such circum-
stances, and a judgment of eviction is recovered against him
in the ejectment suit and he attorns to the plaintiff, when
called upon by the landlord to surrender back the possession,
he can not be permitted to refuse to do so under the plea that
he lias been evicted under a paramount title under which he
now claims to hold.
The relation subsisting between mortgagee and mortgagor,
where the latter is left in possession, is anomalous, and its
1871.] Frazier v. Gates. 183
Opinion of the Court.
precise character is not settled. It was discussed to some ex-
tent in Carroll v. Ballance, 26 111. 9, and there said that the
mortgagee may consider the mortgagor as his tenant for some
purposes.
In Moss v. Gallimore, 1 Dougl. 282 (269,) Lord Mansfield
said : "A mortgagor is not properly a tenant at will to the
mortgagee, for he is not to pay him rent. He is so only quo-
dam modo."
Whether Frazier is to be considered as the tenant of Gates
so as to bring this case within the decision in Lowey. Emerson,
or not, the omission by Frazier to give Gates notice of the
pendency of the ejectment suit, is a circumstance among oth-
ers which goes to mark the conduct of Frazier with bad faith.
Frazier, the mortgagor, should have paid the taxes, instead
of which he suffered the property to be sold for the taxes of
the very year in which he executed the mortgage. He has,
ever since, and before the mortgage, been in the actual occu-
pation of the premises. The constitution of the State required
Bassett, before he should be entitled to a tax deed, to serve
every person in possession of the lot with a written notice of
his purchase of the same for taxes three months before the
expiration of the time of redemption on the sale. It is quite
incredible, under the circumstances, that Bassett could have
got a tax title to the lot, valuable as it was, without collusion
between himself and Frazier. The latter suffered the judg-
ment to be recovered against him by default, and on the very
day the sheriff executes the writ of possession Frazier takes
from Bassett a lease of the premises.
From all the circumstances, the court that tried the case
might well have been authorized to find that there was a col-
lusive surrender of the possession of Frazier to the claimant
of the tax title in order to defeat the recovery of possession
by Gates. If so, Frazier did not fairly yield his possession to
Bassett, and he is bound, by the obligation of good faith aris-
ing from his deed of mortgage, to surrender up the possession
184 Adams Express Co. v. Stettaners. [Sept. T.,
Syllabus.
he now holds, to Gates, to whom it rightfully belongs as
against Frazier, by virtue of his title acquired under the
mortgage.
The judgment of the court below is affirmed.
Judgment affirmed.
The Adams Express Co.
V.
Louis Stettaners
1. Common carrier — release of liability. Where a common carrier in-
serts in the shipping receipt a condition that the company will not be lia-
ble for loss beyond a specified sum, being less than the value of the goods
shipped: Held, that such stipulation does not release the common carrier
unless it appears that the shipper knew of, and assented to, the limitation.
2. Where the receipt contains such a stipulation, and that the carrier
shall only be held liable for gross negligence, and it is assented to by the
shipper, still the carrier would be bound for the use of reasonable care.
Common carriers can not, by contract, excuse themselves from reasonable
care and diligence.
3. Same — loss of 'goods. Where a person sends goods by an express
company and they fail to arrive at their destination, that raises against the
company the presumption of the want of ordinary care. The company
has it within their power to trace the goods and discover where they were
lost, whilst it is not so with the shipper, and hence the burden is upon
the carrier to show that he has used reasonable care, notwithstanding he
may have stipulated he was only to be held liable for gross negligence.
Appeal from the Superior Court of Cook county.
Mr. E. G. Asay and Messrs. Hawes & Lawrence, for the
appellant.
Messrs. Rosenthal & Pence, for the appellee.
1871.] Adams Express Co. v. Stettaners. 185
Opinion of the Court.
Mr. Chief Justice Lawrence delivered the opinion of
the Court :
This was an action brought by the appellee against the
Adams Express Company to recover the value of certain mer-
chandise shipped from New York to Chicago. The case was
submitted to the court upon the following agreement as to
the facts, with liberty to both parties to introduce other testi-
mony :
"It is hereby stipulated and agreed that the merchandise in
controversy was ordered by plaintiffs, merchants in Chicago,
Illinois, of Kutter, Luckemeyer & Co., merchants in the city
of New York, in the usual course of trade, and that plaintiffs
ordered said New York merchants to ship said merchandise
to them at Chicago by the defendant, which is an express
company and common carrier. The value of the goods at the
time of loss, September 13th, A. D. 1870, was $415.50. The
consignors, said New York merchants, shipped said goods by
defendant's company, and received from defendant the paper
hereto annexed. The goods were not delivered to plaintiffs,
but were lost in transit. No statement of the value of the
goods was made at time of shipment. The same consignors,
a short time before this shipment, shipped a package by same
company, of greater value than §50, to other parties (not
plaintiffs). Those goods were also lost. A receipt similar to
one above was given to consignors at time of shipment. The
consignors claimed the full value of goods lost, which was at
first refused on the ground that company claimed not to be
liable for more than §50, but was finally paid by the company.
At the time of payment, which was before the goods in con-
troversy were shipped, the company informed the consignors
that in all shipments thereafter, if they wished to hold the
company liable for more than §50, they must, at time of ship-
ment, state the real value of package shipped ; that plaintiffs
did not know, at the time of the shipment to them, of the fore-
going information by defendant to consignors. Both parties
may introduce other legal testimony on hearing."
186 Adams Express Co. v. Stettanees. [Sept. T.,
Opinion of the Court.
The bill of lading which was introduced in connection with
the foregoing agreement, contains various stipulations printed
underneath the receipt for the goods, one of which is that the
company shall not be liable beyond the sum of $50, at which
the goods forwarded are to be valued, unless otherwise there-
in expressed, or unless specially insured, and so specified in
the receipt.
The defendant claimed it was liable under this provision
only to a judgment of $50. The court held otherwise, and
gave judgment for the value of the goods.
This court has several times held that provisions, like the
one under consideration, annexed to the receipt in a bill of
lading, do not release the carrier from his common law liabil-
ity unless the assent of the shipper to such limitation is shown,
and that such assent is not necessarily to be presumed from
the acceptance of the bill of lading. Adams Express Co. v.
Haynes, 42 111. 90; Western Transportation Co. v. NewJiall, 24
111. 466 ; Bucldand v. Adams Express Co. 97 Mass. 125. It is
urged that the evidence in this case shows what must be con-
sidered as an assent. It is not necessary to discuss that ques-
tion as the judgment must be affirmed upon another ground.
Even if it should be conceded that the shipper, in this case,
must be considered as having assented to the terms of the bill
of lading, we can not hold the carrier excused from the exer-
cise of reasonable and ordinary care. Courts have often had
occasion to express their regret that common carriers have
been permitted, even by contract, to discharge themselves
from the obligations imposed by the salutary rules of the
common law. Practical monopolies as they often are, under
the modern system of railway transportation, they seek to
impose their own terms upon the public and compel the ship-
per to accept such bills of lading as they may choose to issue,
or not to ship at all. The exemption relied upon by the de-
fendant in the present case, furnishes an illustration. It is
very unreasonable in the carrier to say that it will, in no
event, be liable beyond the sum of $50 in the absence of a
1871.] Adams Express Co. v. Stettaners. 187
Opinion of the Court.
special contract, though it may have received much more than
that sum merely in the way of freight. If common carriers
desired to deal fairly with the public, it would be very easy
for them to require the shipper to specify the value of the
merchandise and insert the amount in the receipt, making
their charges in proportion to their liability. If the shipper
should falsely state the value he could not complain at being
held to his own valuation.
In order to prevent the carrier from releasing himself, by
contract, from all liability, courts have laid down the rule
above stated, that he can not, even by contract, exempt him-
self from the exercise of reasonable care. Illinois Central
Railroad Co. v. Morrison, 19 111. 136; Adams Express Co. v.
Haynes, 42 111. 90 ; N. J. Steam Nav. Co. v. Merchants' Bank,
6 How. (U. S.) 382 ; York Co. v. Central R. R. Co. 3 Wallace
113 ; Farnham v. Camden & Amboy Railroad Co. 55 Penn. 58.
They have also established the further principle that, where
the goods fail to arrive at their destination and the carrier
does not show the manner of their loss, the presumption
arises against him of want of ordinary care. Adams Express
Co. \. Haynes, 42 111. 89 ; American Express Co. v. Sands, 55
Penn. St. 140; Davidson v. Graham, 2 Ohio St. Rep. 131.
This rule is reasonable and just. The carrier alone has it
in his power to show what has become of the goods, or why
they were not duly delivered. He has the means of tracing
them from the moment of their shipment. The shipper has
not. He can only show that he delivered them safely to the
carrier, and unless the rule in question is applied, the shipper
would practically have i>o remedy, even though his goods had
been plundered by the very servants of the carrier. It would
very rarely be in his power to make the necessary proof.
In the case before us, the defendant made no proof what-
ever, showing why the goods had not arrived. The presump-
tion then must be indulged that there was the absence of rea-
sonable care, and in that event the defendant can not excuse
itself, even by contract. Judgment affirmed.
188 City of Chicago v. Rogers. [Sept. T.,
Syllabus. Opinion of the Court.
City of Chicago
v.
Thomas H. Rogers.
1. Practice — verdict Upon the trial of a cause in the circuit court, by
consent of counsel, the jury were authorized to return a sealed verdict,
and the court adjourned; but before the judge had left his seat on the
bench, the jury, having agreed, were brought in and delivered an open
verdict in the presence of the judge, clerk and plaintiff's attorney, in favor
of the plaintiff, but in the absence of defendant or his counsel, and were
discharged : Held, that it was error thus to receive the verdict.
2. And besides, the court, having adjourned, could not receive any ver-
dict until it was again convened.
Appeal from the Circuit Court of Cook county ; the Hon.
Henry Booth, Judge, presiding.
Mr. I. N. Stiles and Mr. John Lewis, for the appellant.
Messrs. Merriam & Alexander, for the appellee.
Mr. Justice Walker delivered the opinion of the Court :
This was an action on the case, brought by appellee, in the
Cook circuit court, against appellant, to recover for injuries
claimed to have been received by reason of defects in a pub-
lic street in the city. On the trial in the court below, by con-
sent of counsel, the jury were authorized to return a sealed
verdict, the court having adjourned; but before the judge had
left the court room, or his seat on the bench, he was informed
by the officer having charge of the jury that they had agreed
upon a verdict; thereupon they were brought in, and deliv-
ered an open verdict, in the presence of the judge, the clerk
and plaintiff's attorney, but in the absence of defendant's
counsel, and the jury were discharged.
The court having adjourned before the verdict was rendered,
the majority of the court hold it was error to receive it. The
1871.] Tedrick et al. v. Hiner. 189
Syllabus. Statement of the case.
agreement was, that the verdict should be sealed, and it was vio-
lated by receiving an open verdict. Again, the bill of excep-
tions shows the court had adjourned, and the court had no
power to receive any verdict until it was again convened.
This being true, the court below should have granted a new
trial. No other error is perceived in the record.
The judgment of the court below is reversed and the cause
remanded.
Judgment reversed.
George Tedrick et al.
V.
John H. Hiner.
1. Services as attorney — whether compensation can be recovered for,
without license to practice. Where a party, representing himself to be an
attorney, was employed by another as such, and it appeared he had no li-
cense to practice as an attorney, and in all he did acted as a regularly li-
censed attorney, it was 7ield, he could not recover for the services so ren-
dered.
2. Allegations and proofs — in action against several. In an action
ex contractu against several, there can be no recovery unless a joint prom-
ise or liability is proved.
Appeal from the Circuit Court of Knox county; the Hon.
Arthur A. Smith, Judge, presiding.
This was an action of assumpsit, brought by John H. Hiner
against George Tedrick and Thomas Dugan, for services by
him performed for the defendants. In the circuit court judg-
ment was rendered in favor of the plaintiff, to reverse which
the defendants appeal.
Messrs. Kretsinger & Hannaman, for the appellants.
Messrs. Craig & Harvey, for the appellee.
190 Tedrick etal v. Hixer. [Sept. T.,
Opinion of the Court.
Mr. Justice Breese delivered the opinion of the Court :
The testimony in this case clearly shows that appellee rep-
resented himself to one of the appellants, Tedrick, as an at-
torney at law, and familiar with the prosecution and direction
of actions of ejectment. He was introduced to Tedrick as an
attorney ; he had held himself out in Yates City, where he re-
sided, as an attorney, and exhibited to persons there what he
said was a license to practice law. It was in this character he
approached Tedrick, and as such he was employed by Tedrick
to manage an ejectment suit, which Tedrick. had notice was
instituted against him to recover possession of the farm on
which he resided. As such attorney, appellee advised and
counselled Tedrick, and now seeks to recover compensation
therefor, sinking his rank as an attorney and claiming to have
acted as agent only.
The proof is clear that appellee, in all he did, acted as a
regularly licensed attorney, without having any pretensions to
such a position, and without any license to practice as an at-
torney.
By section eleven of Chap. XI, title, "Attorneys and Coun-
selors at law," R. S. 73, had appellee received money or other
compensation from appellants for services rendered as an attor-
ney, he having no license, he would be liable to an action to
recover it back by the party paying it. The equity and policy
of the statute forbids a recovery on his part for services so
rendered.
There is another objection to the recovery. There was no
joint promise or liability to appellee proved.
For the reasons given, the judgment must be reversed and
the cause remanded.
Judgment reversed.
1871.] Mansfield v. Cole. 191
Syllabus. Opinion of the Court.
Henry Mansfield
v.
Almiron S. Cole.
1. Bailment — diligence. A person receiving a horse to pasture for hire
is only bound to the use of reasonable care of the property, and only be-
comes liable for loss or injury to such property where there is a want of
such care.
2. Where the owner of a horse places it in the hands of an agister,
and the owner knows the animal to be breachy, if he desires to have
more than ordinary care bestowed in keeping the animal, he should con-
tract for such superior diligence.
Appeal from the Circuit Court of Peoria county ; the
Hon. Sabin D. Puterbatjgh, Judge, presiding.
Messrs. Ingersoll & McCune, for the appellant.
Messrs. McCulloch & Rice, for the appellee.
Mr. Justice Scott delivered the opinion of the Court :
The single inquiry presented by this record is, whether the
evidence sustains the verdict of the jury.
The principal facts in the case are as follows : The appel-
lant delivered his horse to the appellee, to be kept on his pas-
ture. The horse broke out of the enclosure and strayed away,
and was wholly lost to the appellant.
The only question involved in the case is, whether the ap-
pellee took the proper care of the horse while in his posses-
sion, y
It is insisted by the appellant- that the appellee ought to
have exercised a higher degree of care, so as to have prevented
the horse from escaping from his pasture.
The appellee was only bound to exercise ordinary care, and
the evidence tends to show that he did use such a decree of
192 Harding v. Town of Hale. [Sept. T.,
Syllabus.
diligence in the care bestowed on the appellant's horse while
in his pasture.
It appears from the evidence that the horse was "breachy,"
and in view of that fact, the appellant insists that the appel-
lee ought to have used a higher degree of care.
The fact that the horse was " breachy," seems to have been
known to the appellant before he let him out to pasture, and
knowing this fact, he ought to have contracted for extraordi-
nary care. In the absence of a special contract, the agister of
cattle is only bound to use ordinary care. Umlavf v. Bassett,
38 111. 96.
In regard to the degree of care that the appellee did actu-
ally bestow on the property of the appellant, there is a con-
trariety of evidence, and it is not the province of this court
to say which was the better evidence, and upon which the jury
ought to have relied with the most confidence. After a care-
ful consideration, we can not say that the verdict is against the
weight of the evidence.
The degree of care bestowed by the appellee upon the prop-
erty of the appellant while in his possession, was a question
of fact properly submitted to the jury, and in view of all the
evidence, we do not feel authorized to disturb their verdict.
The judgment must be affirmed.
Judgment affirmed.
Abner C. Harding
v.
The Town of Hale.
1. Public highway — obstruction of. Where the county commission-
ers lay out and establish a public highway of a prescribed width, it will be
confined to that width, unless increased by dedication or otherwise. The
1871.] Harding v. Town of Hale. 193
Opinion of the Court.
mere fact that it was graded, and was traveled a greater width, but outside
of the road no particular strip was so used, does not change the boundary
of the road.
2. Under the act of 1849, the owner of land adjoining a highway may
plant a live fence on the precise line of the road, and may erect a protec-
tion fence not more than six feet in the road from the live fence, and may
maintain it for the period of five years, without being liable to prosecution
for obstructing the highway.
3. Bill in equity — estoppel. "Where a party files a bill in equity to re-
strain the removal of such protection fence, and, by mistake, alleges in his
bill that the road was established four rods wide, and afterwards, by leave
of court, amends his bill, and charges that the road was, in fact, established
but fifty feet in width, the first allegation does not estop him from showing
he was prosecuted for obstructing the road that was but fifty feet in width.
4. Highway — act of 1849. In such a case, it is error to instruct the jury
that, if the defendant built a fence in any part of a highway that had been
used for more than twenty years before the fence was erected, they should
find the defendant guilty of obstructing the road. Such an instruction ex-
cludes a defendant from all benefit of the statute of 1849, and should be
modified or refused.
5. Same — dedication. It is error for the court to instruct the jury that,
while the voluntary use with the assent of the owner of the soil may not
be enough to create a highway, but when used, traveled by the public, and
recognized and repaired by the public authorities, and acquiesced in by
the owner, it becomes a public highway by dedication. In such a case, the
question of an intention to dedicate by the owner is essential to the dedi-
cation in addition to the other acts specified in the instruction. That ques-
tion should be fairly left to the jury, but is taken from them by such an in-
struction.
Appeal from the Circuit Court of Warren county ; the
Hon. Arthur A. Smith, Judge, presiding.
Messrs. Harding & McCoy, for the appellant.
Mr. John J. Glenn and Mr. John Porter, for the ap-
pellee.
Mr. Justice McAllister delivered the opinion of the
Court :
This action was commenced in a justice's court, by the town
of Hale against Harding, to recover a penalty under the statute
13 — 6 1st III.
194 Harding v. Town of Hale. [Sept. T.,
Opinion of the Court.
for an alleged encroachment by the defendant upon a pub-
lic highway. Stat. 1861, p. 264. In that court judgment
was given for the defendant, from which the plaintiff took an
appeal to the Warren county circuit court, wherein the cause
was tried before a jury, who returned a verdict against defend-
ant of guilty. A motion for new trial was made, overruled
by the court and judgment rendered upon the verdict.
The evidence and rulings of the court were preserved by
bill of exceptions, and the case brought to this court by ap-
peal. The errors assigned question the propriety of the ruling
of the court in refusing to grant the motion for a new trial,
and in giving instructions on behalf of plaintiff and refusing
those on behalf of defendant.
The bill of exceptions purports to contain all the evidence.
The road in question was known as the Monmouth and
Oquawka road, running east and west through sections 27, 28,
etc., Hale township, Warren county.
The plaintiff gave in evidence, without objection, the rec-
ord of proceedings in the county commissioners' court of that
county, at the October term, 1838, purporting to lay out a
highway from Monmouth to Oquawka, fiftv feet wide, and on
the middle line through certain sections, including said section
27. And also introduced in evidence, without objection, the
record of proceedings in the same court at the June term,
1847, from which it appears that an order was made that the
survey of Joseph Paddocks, county surveyor, of the road com-
mencing on sec. 26, 11 north, 3 west, thence west to Hender-
son county line, /or the purpose of grading said road, be filed,
and that the expense of such survey be paid out of the county
treasury. The survey was filed on the 10th of June, 1847,
and reads as follows: " Survey of the road from Monmouth
to Oquawka, commencing at the quarter section corner be-
tween sections 26 and 27, then north 83 deg. 30 min. west to
the Henderson county line at the quarter section corner of
section 30, town 11 north, 3 west, and of the lots that were
1871.] Harding v. Town of Hale. 195
Opinion of the Court.
sold out to be graded, and the names of the undertakers an-
nexed to said lots, as per plat hereto annexed will show, the
dotted line representing the road." This dotted line begins
near the east line of section 27, and runs west through the
middle of sections 27, 28, 29 and 30.
The only other proceedings relate to the letting of the con-
tracts for doing the grading, and acceptance of the work.
These proceedings in 1847 purport to be neither for the pur-
pose of laving out a new road, nor the widening of one already
laid out, but are merely for the purpose of grading one already
laid out, which was fifty feet in width. There was evidence,
however, tending to show that, in making the grade of the
road, under the order of 1847, through section 27, "they broke
from out to out sixty feet," and that the road laid out was in
fact sixty feet wide.
There was no dispute as to the north line of the highway,
through section 27. That line seems to have been established
and marked by a fence which had existed for twenty years and
upwards. But there appears to have been no fence on the
south line during any considerable part of that time ; if there
was, the record fails to show it.
It appears that the ground through 27, where the road was
laid out, was rather low and wet, and that the work of grad-
ing was insufficiently done to make a good road; that, as
was natural to suppose, in the wet seasons of the year, the
travel encroached upon the lands on the south side. But there
is no evidence to show, nor is it pretended by counsel for ap-
pellee, that such travel, outside of the regularly laid out road,
was confined to any particular strip of a given width; nor are
there any circumstances in proof from which the jury could
infer any intention on the part of the owner to dedicate any
particular additional strip of land on the south side of the
highway regularly laid cfut, so as to make it a lawful highway
of any greater width than the fifty feet as prescribed by the
county commissioners' court, or at most, than the sixty feet —
the width at which it was worked.
196 Harding v. Town of Hale. [Sept. T.,
Opinion of the Court.
The defendant, being the owner of the southeast quarter of
section 27, the north boundary of which was upon the south
line of this highway, and wishing to plant a hedge or live
fence upon the south line of such highway, prepared his ground
for that purpose, and, in the spring of 1869, built a fence for
the protection of the hedge along the margin of the highway.
That fence is the alleged encroachment.
By an act of the legislature, approved February 12th, 1849,
it is enacted, "That whenever any owner or owners, occupant
or occupants, of any land or lands bordering upon a public
road or highway, except a street or alley in a town or village
through which any public road or highway may pass, may
wish to plant any live fence along the margin of his, her or
their lands, it shall be lawful for any such person or persons to
set or plant any such hedge or live fences precisely on the line
of the public road or highway, and also to set or plant on the
margin of said road a protection fence, not to occupy more
than six feet of the margin of said road, and such protection
fence, when planted opposite any fence or hedge, actually set or
planted, shall be permitted by supervisors and all other persons to
remain for the term of five years," etc. Stat. 1849, p. 84.
The plaintiff introduced in evidence, on the trial of the
cause, an original and amended bill in chancery, filed by de-
fendant, as complainant therein, in the Warren circuit court,
in May, 1869, to restrain the officers of the town of Hale from
interfering with said protection fence, which bills were sworn
to by defendant, and upon which an injunction was allowed.
In the original bill it is alleged that the highway in question
was originally laid out four rods wide; but having obtained
leave to amend his bill, he stated in such amendment that it
was erroneously alleged in the original bill that the road was
originally laid out of the width of four rods, and that it was
in fact laid out but fifty feet wide.
The counsel for appellee seem to rely upon the allegation
of the original bill, that the road was laid out of the width
of four rods, as an estoppel upon defendant.
1871.] Haeding v. Town of Hale. 197
Opinion of the Court.
u Whether the statements in the bill are to be taken conclu-
sively against the complainant, as admissions by him, has been
doubted; but the prevailing opinion is supposed to be against
their conclusiveness, on the ground that the facts therein stated
are frequently the mere- suggestions of counsel, made for the
purpose of obtaining an answer under oath. If the bill has
been sworn to, without doubt the party would be held bound
by its statements, so far as they are direct allegations of fact"
1 Greenlf. Ev. sec. 551, and the cases cited in note 2.
The allegation of the original bill is, " that a public road
of the width of four rods, leading west from Monmouth, in
said county, and commonly known as the Oquawka road, was
laid out by the proper authorities of said county many years
ago."
The allegation of the amended bill is, "that the public road
known as the Monmouth and Oquawka road, mentioned in
your orator's said bill, was originally laid out of the width of
fifty feet, instead of four rods, as erroneously stated in said
original bill, as shown by the record of the laying out of said
road, a copy of which is hereto annexed/' etc.
The position of counsel, that the defendant was estopped by
his allegation in the original bill from denying that this high-
way was laid out four rods wide, is susceptible of two an-
swers: 1st. The allegation, as it originally stood, was not of
itself a direct allegation of a fact, but a reference to a legal
proceeding and its results. It partakes of the nature of a de-
scription. Yet there was such a clear mistake or variance,
that the records of the county commissioners' court would not
be admissible to sustain it. It would be an extraordinary
doctrine that, if a complainant in chancery refers to a legal
proceeding in his bill, and gives a mistaken description of it,
he is forever bound by such mistaken description, although
he amends his allegatiofi in conformity with the truth, under
leave of the court. 2d. When the amendment was made
under the order of the court, there ceased to be any such alle-
gation, that the road was laid out four rods wide. That
198 Harding r. Town ofIIake. [Sept. T.,
Opinion of the Court.
allegation became altered into another, in conformity with the
truth. Amendments to a bill are always considered as form-
ing a part of the original bill. Although it is the practice to
call a bill thus altered an amended bill, the amendment is in
fact esteemed but as a continuation of the original bill, and
as forming a part of it, for both original and amended bills
constitute but one record. 1 Dan. Ch. Pr. 455.
But the plaintiff having introduced the bill in evidence, the
defendant was entitled to the benefit of all its allegations of
fact making in his favor. It distinctly alleges, "that the said
fence was and is of a temporary character, intended merely
for the protection of a hedge which complainant began to
grow and attempted to raise on his land and near the line of
said road, on the south side thereof, which said hedge is loca-
ted about six feet inside of said fence. "
There was no attempt, on the part of plaintiff below, to
controvert the truth of this allegation, or the testimony given
by the defendant on the trial, that the fence was niade as a
protection to his hedge.
Such being the state of the case, the court, on behalf of the
plaintiff, gave to the jury the following instruction:
" The jury are instructed, on the part of the plaintiff, that, if
they believe, from the evidence in this case, that the defend-
ant, Harding, erected, or caused to be erected or built, a fence
in any part of a public highway running on the north side of
the southeast quarter of section 27, 11, 3 in Hale township,
in Warren county, and that although they may believe, from
the evidence in this cause, was not a laid out road according
to the statute, where the fence is erected ; yet if they believe,
from the evidence in this cause, that any part of said fence is
in any part of a public highway that has been used, worked
and traveled for more than twenty years before the erection
of said fence, then they will find the defendant guilty, and
assess the damages at/' etc.
1871.] Harding v. Town of Hale. 100
Opinion of the Court.
It was shown, upon the trial, by witnesses who had made an
actual measurement, and the fact was not disputed by anybody
who had made such measurement, that after defendant had
built his fence, the width of the highway between it and
the fence on the north line wTas generally sixty-three feet,
though in some places it was only sixty-two. This left the
highway at least two feet wider than any witness pretended it
was practically laid out under the proceedings of 1847 ; but
even if it be conceded that, by dedication or prescription, a
still wider strip was added to it on the south side, of which
there is no satisfactory evidence in the record, still, as the case
stood upon undisputed facts, the real questions to be submitted
to the jury were, whether the defendant had actually planted
a hedge upon his land near the south line of the road, and
made the fence opposite the hedge for its protection, and
whether such fence took in more than six feet of the margin
of the road, and they should have been told that, if the hedge
was actually planted, and the fence for its protection included
more than six feet of the margin of the road, the defendant
would be liable, otherwise not.
Instead of this, the instruction given declared an absolute
liability, if the defendant erected or caused to be erected or
built a fence in any part of the public highway. ' The effect
of this instruction was to exclude all consideration of the
grounds of defense, and to deprive the defendant of the pro-
tection of the statute of 1849, and it was error to give it.
The second instruction, on behalf of plaintiff, is thus :
aThe jury are instructed the voluntary use of a way by the
public, with the assent of the owners of the soil, may not of
itself be enough to make it a public highway; but when the
fact that it is used and traveled by the public is connected
with proof of its actual recognition, and repaired by the proper
public authorities by the public, and an acquiescence by the
owner of the land — that the way is a public highway by ded-
ication. And if the jury believe, from the evidence in this
200 Harding v. Town of Hale. [Sept. T.,
Opinion of the Court.
case, that the public authorities of Warren county and Hale
township worked and repaired the road where the defendant
has his fence, and the repairing, working and traveling of said
road by the public was done with the knowledge and assent of
the defendant or his grantor or grantors, then the jury should
find for the plaintiffs in this case."
The vital principle of dedication is the intention to dedi-
cate— the animus dedicandi; and whenever this is unequivo-
cally manifested, the dedication, so far as the owner of the soil
is concerned, has been made. Ang. on Highways, sec. 142.
In Marcy v. Taylor, 19 111. 634, the court said : "A dedi-
cation for a highway may be proven in various ways; it may
be established by a written grant, by long and uninterrupted
user, or by the acts and declarations of the owner of the prem-
ises; but to be availing, it must be made with the intention to
dedicate" See also Bees v. City of Chicago, 38 111. 322.
By this second instruction, instead of submitting the ques-
tion of intention to dedicate, to the jury, the court tells them
that the facts of user by the public, recognition by the proper
authorities and making repairs, "and an acquiescence by the
owner of the land," of themselves constitute dedication. In
the latter branch of the same instruction, the court improperly
assumed that the place where the defendant has his fence was
a road, and then directed the jury to find for the plaintiff, if
they believed, from the evidence, that the public authorities
worked and repaired it, and the repairing, working and trav-
eling of said road, by the public, was done with the knowledge
and assent of the defendant or his grantor or grantors. This
instruction goes the length of making any act of working, re-
pairing or traveling on this road, with the knowledge and as-
sent of the defendant, to constitute a cause of action against
him ; and it goes still further, and declares that, if the act of
repairing, working and traveling on the road was done with
the knowledge and assent of defendant's grantor or grantors,
1871.] Walton et al. v. Develing et al. 201
Syllabus.
without reference as to whether it was before or after their
grant to him, still he shall be made liable. Such is not the
law.
The instruction was manifestly erroneous, and the judgment
must be reversed and the cause remanded.
Judgment reversed.
Samuel B. Walton et al.
v.
J. D. Develing et al.
1. Election — injunction — disobedience. Where the law authorizes an
election to be called in a township to determine whether a majority are in
favor of subscribing to the stock of a railroad company, and the election is
called in pursuance to the requirements of the law, a court of equity has
no power to restrain the officers from holding, or the people from voting,
at such election. A writ of injunction issued in such a case is void, and
the officers and people are not bound to obey it, as the court has no juris-
diction to issue the writ.
2. Injunction — contempt of court. In such a case, the defendants are
not liable to be punished for a contempt of court for disobedience to such
a writ. The statute confers power upon the court to punish for a con-
tempt "for disobeying its process, rules or orders issued or made conform-
ably to law." And the court having no power to enjoin the holding of an
election, an injunction issued for the purpose is not issued conformably to
law, and is void.
3. Officers — legal duty. Where the law plainly requires an officer to
perform a duty, and he is not exceeding or abusing his powers, but fairly
acting within the same, and a court issues a writ to restrain him from its
performance, he must discharge his duty as prescribed by the law.
4. Equity— -jurisdiction — error. Where the court, has jurisdiction of
the subject matter, but acts erroneously, then the person enjoined would be
in contempt by disobeying the writ.
5. Injunction — dissolution — damages. Where a writ of injunction is-
sued in such a case, is dissolved, it is the duty of the court, on suggestions
being filed by the defendants, to hear evidence and assess such damages as
202 Walton et al v. Develing et al. [Sept. T.,
Opinion of the Court.
the nature of the case may require. Nor does the fact that the writ of
injunction was void, affect the right of the parties to recover damages,
Parties have the same right to defend against a void, as a valid, writ.
Appeal from the Circuit Court of Iroquois county; the
Hon. Charles H. Wood, Judge, presiding.
Mr. C. R. Starr, for the appellants.
Mr. Wm. Potter, for the appellees.
Mr. Justice Thornton delivered the opinion of the Court :
Upon application to the master, a writ of injunction was is-
sued to restrain appellants, who composed the board of election
of the town, from holding an election in accordance with the
statute, in reference to the subscription to the capital stock of
a railroad company.
% The allegations in the bill which seem to be relied upon in
the argument are, that there had been a previous election
upon a proposition to subscribe $50,000, and that the clerk of
the town, upon the petition of ten legal voters, and tax pay-
ers, had unlawfully posted up notices that an election would
be held to determine whether or not the electors of the town
were in favor of subscribing $30,000 to the stock of the com-
pany.
The election was held in violation of the injunction, and
appellants wrere fined for contempt, which consisted of the
alleged disobedience of the process of the court.
There is no pretense that the special statute, by virtue of
which the election was to be held, had not been fully com-
plied with by a proper petition and due notice.
By the writ the clerk, supervisor, collector and assessor of
the town, and all other persons therein, were enjoined from
holding or participating in the election.
Two questions arise for consideration.
First — Had the court any jurisdiction over the subject mat-
ter, and authority to issue the writ?
1871.] Walton et al. v. Deveeing et al. 203
Opiuion of the Court.
Second — If it had not, was the alleged disobedience a con-
tempt of the court?
The cases in which this remedial writ has been issued, are
of almost endless variety, and yet there should be some limit
to the exercise of this enormous power. In Brown v. Newall,
2 Myl. & Cr. 558, Lord Cottenham, in delivering the opin-
ion,said, as to this power: "I am most unwilling to lay down
any rule which should limit the power and discretion of the
court as to the particular cases in which a special injunction
should or should not be granted ; but I have always felt — and
since I have been upon the bench I have seen no reason to
alter my opinion — that extreme danger attends the exercise
of this part of the jurisdiction of the court, and that it is a
jurisdiction to be exercised with extreme caution. It is abso-
lutely necessary that the power should exist because there are
cases in which it is indispensable ; but I believe that, practi-
cally, it does as much injustice as it promotes justice, and it
is, therefore, to be exercised with extreme caution."
The strong language of the learned chancellor applies with
great force to the case at bar.
Section 10 of the act to incorporate the railroad company,
prescribes that the clerk of the town, upon the presentation of
a petition signed by ten citizens, legal voters and tax payers
of the township, shall post up notices of an election, which
shall be conducted in the manner provided by law for the
election of town officers. Private Laws 1869, 135.
The law referred to in section 10, requires that the electors
shall meet at the time and place specified in the notice, choose
a moderator, and proceed with the election ; and that the town
clerk shall be the clerk at the meeting.
An act of the same session of the legislature provides that
the proper authorities may, after rejection, again submit to
.the electors a propositionrto subscribe to the capital stock of
any corporation, at their discretion. Sess. Laws 1869, 173.
Thus it will be seen that the rejection of the subscription is
no bar to a subsequent election.
204 Walton et al. v. Develixg et al. [Sept. T.,
Opinion of the Court.
No fraud is charged in the bill, and it is not alleged that
the act of incorporation is invalid and not obligatory upon the
officers mentioned in it.
The charter of the railroad company made it the duty of
the clerk, upon request, to submit the question of subscribing
to the stock to the voters ; but when we construe it in con-
nection with the other act, having reference to the same sub-
ject, we find that he is released from the positive duty and
jnust exercise a discretion.
There is no charge of the exercise of an unreasonable dis-
cretion, or of non-compliance with the law.
In such case, what must control the officer, the mandate
of the court, or the plain behests of the law? The court, as
well as the inferior officer, must be governed by the law.
When the law imposes a positive duty upon a public function-
ary and a court commands him not to perform it, he must
obey the law and disobey the writ of the court. If the law
give him a discretion in the discharge of a public duty, the
implication is that he must act without other control than his
own judgment. Upon the allegations in the bill, there could
be no power or jurisdiction in the court to review or restrain
the discretion. If so, there would be no discretion. The offi-
cer, and not the court, must discern and determine the propri-
ety of the election.
In Jfooers v. Smedley, 6 Johns. Ch. 28, a bill was filed to
enjoin the supervisors of a town from the allowance of certain
bounties for wolf scalps to non-residents of the town, and al-
leging that the bounties were confined to residents, and that,
by such action of the supervisors, the tax of the plaintiff was
greatly augmented.
The law gave the supervisors authority "to examine, settle
and allow all accounts, etc."
Chancellor Kent said : "I can not find, by any statute, or
precedent or practice, that it belongs to the jurisdiction of
chancery, as a court of equity, to review and control the de-
termination of the board. * * This power implied and
1871.] Walton et al. v. Develing et ah 205
Opinion of the Court.
required the exercise of sound judgment. * * This is not
the case of a private trust, but the official act of a political
bod v ; and in the whole history of the English court of chan-
cery there is no instance of the assertion of such jurisdiction
as is now contended for."
In the case of Frewin v. Lewis, 4 Myl. & Cr. 249, it was
held that the chancellor had no jurisdiction to exercise any
power over the proceedings of the poor law commissioners
unless they were departing from the power which the law had
vested in them, or were assuming a power which the law did
not give them. The chancellor, in delivering the opinion of
the court, used the following language: "So long as those
functionaries strictly confine themselves within the exercise
of those duties which are confided to them by the law, this
court will not interfere. The court will not interfere to see
whether any alteration or regulation which they may direct,
is good or bad," when there is no departure from, or abuse of,
the powers granted.
The court had no right to control the discretion exercised
in this case, but the writ was absolutely void. The election
proposed would have been an assemblage of the people for a
lawful purpose, and for consultation for the common good. It
would have violated no law; would have been no usurpation
of authority, and would have been the exercise of a constitu-
tional right.
The writ not only restrained the officers, but the electors —
the people.
If a majority of the voters voted in favor of subscription,
the making of it might be enjoined for good reasons, and the
issue of bonds might be restrained for sufficient cause.
But the attempt to check the free expression of opinion — to
forbid the peaceable assemblage of the people — to obstruct the
freedom of elections — if successful, would result in the over-
throw of all liberty regulated by law. The mere effort to
assume such power is dangerous to the rights of the citizen.
If the courts can dictate to the officers of the people that they
206 Walton et al. v. Develing et al [Sept. T.,
Opinion of the Court.
shall not hold an election from fear of some imaginary wrong,
then people and officers are entirely subservient to the courts,
and the consequences are too fearful to contemplate.
The principle which would authorize the mighty mandate
of a court of chancery, in this case, would justify it in every
election to be held by the people, and thus, the whole admin-
istration of the government might be obstructed and all
power and authority placed at the footstool of the judge.
We are of opinion that the court had no jurisdiction to is-
sue the writ, and that it is, therefore, null and void.
Was, then, the disobedience of the writ a contempt of the
court ?
Though the authorities are conflicting, this court has re-
peatedly held that an appeal lies from the judgment of the
circuit court to the supreme court imposing a fine for con-
tempt of the process of the court. Stuart v. The People, 3
Scam. 395 ; Crook v. The People, 16 111. 535 ; Brown v. The
People, 19 111. 613 ; Wightman v. Wightman, 45 111. 167 ; Win-
kelman v. The People, 50 111. 449 ; Winship v. The People, 51
111. 296.
According to the statute, circuit courts have power to pun-
ish all contempts "for disobeying any of its process, rules or
orders, issued or made conformably to law." The process
must be issued in compliance with the law. Its vitality de-
pends upon this. If the act enjoined is plainly and impera-
tively required by law to be performed by the officer, then the
process forbidding it is not made "conformably to law."
In this case, the power to punish for contempt is only aux-
iliary and incidental to jurisdiction over the. subject matter.
As there was no jurisdiction of the matters alleged in the bill,
the subsequent action of the court was extra-judicial and void.
Piper v. Pearson, 2 Gray, 120; Davis v. The Mayor of New
York, 1 Duer, 451 ; Perry v. Mitchell, 5 Denio, 537.
If, however, the court had acted within its powers and ju-
risdiction, although erroneously, the party would be in con-
tempt for breach of the injunction.
1871.] Walton et al. v. Develikg et al. 207
Opinion of the Court.
There could, therefore, be no contempt, as there was no ju-
risdiction in this case.
The court erred in its refusal to hear proof upon the sug-
gestion of damages for the issuance of the injunction. When
the answer was filed, the court dissolved the injunction. The
statute is imperative that, after dissolution, the court shall
hear evidence and assess such damages as the nature of the
case may require. Sess. Laws 1861, 133.
According to the view we have taken of the case, there was
no disobedience of the writ, and all of the defendants could
unite in the suggestion of damages.
Counsel for appellees assumes that, if the writ was void — if
the court had no jurisdiction — then there was no necessity, to
defend, or for a motion to dissolve the injunction.
The bill was, in fact, pending, and the injunction had been
issued. A party has an equal right to come into court to de-
fend a void, as a valid writ.
The case of Palmer v. The Board of Supervisors, etc., 46 I1!.
447, is not in point. In that case a mere temporary restrain-
ing order, for nine days, had been issued, until the application
for the injunction could be heard. Upon the hearing, it was
refused. This restraining order expired by its own limita-
tion, and no order of the court was necessary for its dissolu-
tion.
In this case, the parties were liable to fine and imprison-
ment— they were under restraint until the court made an or-
der to the contrary — and it was eminently proper that they
should appear in court and make their defense.
It is ordered that the decree of the court dismissing the bill
and dissolving the injunction, be affirmed.
It is further ordered that the judgment of the court, asses-
sing a fine against appellants, be reversed, and that they be
discharged of the alleged pontempt. And it is further ordered
that the court hear evidence upon the suggestion of damages,
and the cause be remanded.
Judgment reversed.
208 Thompson v. Mason et al [Sept. T.,
Syllabus. Statement of the case.
Harvey M. Thompson
V.
Edward G. Mason et al.
1. Will — construction. Where a man provided in his will that his
estate should not be divided until his youngest child arrived at the age of
twent}r-one years, and after paying taxes, repairs, etc., from the net income,
required his executors "to pay one-third thereof to my wife till the major-
it)'' of my youngest child, which one-third is to be for her dower in my es-
tate," the balance of such income to be divided equally among his children
until the youngest became twenty-one years of age: Held, that this pro-
vision was given for and in lieu of the dower of the widow in the per-
sonal estate, and that it ceased at the death of the widow ; that it was
not a bequest that was to run till the youngest child became twenty-one
years of age, if she should die before that time.
2. Same. Where the will contained this clause, "at the majority of the
youngest child — and by majority I mean the age of twenty-one years, and
not before — my estate is to be divided into eight equal parts. One undivi-
ded eighth I give and bequeath to my wife, Mary E. Starkweather, to
have and to hold to her, her heirs and assigns forever, provided she then
elects to receive the same in lieu of dower in my estate; provided, how-
ever, that my wife is not required to elect whether she will accept the
eighth under this will in lieu of dower until the time for partition of my
estate under this, my will," and the widow elected to take under the will,
within the time prescribed by the statute, and made her will affirming the
election, and disposing of the property she had taken under her husband's
will: Held, that she, by electing to take under the will, became invested
with the absolute title to the eighth part bequeathed to her; that the de-
vise was not on the condition that she should elect at, and not before, the
time for the partition. By the will, she had until that time to make her
election.
Appeal from the Circuit Court of Cook county.
This was an amicable suit commenced by bill, brought by
Edward G. Mason and George H. Laflin, executors of Charles
R. Starkweather, deceased, in the circuit court of Cook county,
against Harvey M. Thompson, guardian of Chauncey Clark
Starkweather and Frank Henry Starkweather, minors. It is
stated in the bill that the estate of the testator, at the time of
1871.] Thompson v. Mason et al. 209
Statement of the case.
his death, in August, 1867, was worth about $200,000, and
has doubled in value since that time ; that the net annual
income from his estate is $12,000, and the gross income
about $22,000.
It is alleged that doubts had arisen as to the construction
of two clauses of the will, the executors believing that, by its
terms, they were required to pay to the legatees and devisees
of his widow, who had made her will and died, the same
share in the estate of her husband that she would have been
entitled to receive under his will had she still been living ;
but the guardian insisted that the annual dividend required to
be paid to her by her husband's will, ceased at her death.
And the testator having devised to his widow one-eighth part
of his estate if she should elect to receive it when a distribu-
tion of his estate was directed to be made by his will, and she
having elected before that time to take under the will, and
died, it was contended by the guardian that no title or inters
est to that eighth part of the estate passed to her devisees and
legatees, as no title could vest in her until election at the
time fixed for division and partition of the estate. There was
a provision in the will that, if the widow should elect not to
take under the will, the bequest to her was given over to
three charitable institutions, and they were represented in
the suit and claimed the share devised to the widow.
The object of the bill was to obtain a judicial construction
of the will.
The material portions of the will upon which this litigation
arises are as follows :
"Third — I order and direct that my estate should not be
divided until my youngest child becomes of the age of twen-
ty-one years, and that, until such time, the executors herein
named shall receive such rents, issues and profits of my es-
tate, and out of the same to/pay all taxes, insurance, and ex-
penses of repairing the same, including repairs also, and rea-
sonable compensation also for their services in the manage-
ment of my estate, and the net income thereof to be divided
14— 6 1st III.
210 TiioMrsox r. Mason et al. [Sept. T.,
Statement of the case.
as follows : To pay one-third thereof to my wife till the ma-
jority of my youngest child, which one-third is to be for her
dower in my estate, the balance of said income to be divided
equally among my children, share and share alike, during and
until my youngest child shall become twenty-one years of
age : Provided, however, that should the share going to my
two youngest children, Chauncey Clark Starkweather and
Frank Henry Starkweather, not realize fourteen hundred dol-
lars ($1400) each during their minority, then I order and di-
rect that during their minority they each receive, out of the
net income of my estate, that sum.
'-Fourth — At the majority of the youngest child — and by
majority I mean the age of twenty-one (21) years, and not
before — my estate is to be divided into eight equal parts. One
undivided eighth I give and bequeath to my wife, Mary E.
Starkweather, to have and to hold to her, her heirs and as-
signs forever, provided she then elects to receive the same in
lieu of dower in my estate : Provided, however, that my wife
is not required to elect whether she will take the eighth under
this will in lieu of dower until the time for partition of my
estate under this my will. If she does not elect to receive the
same in lieu of dower, then her dower is to be assigned to her
according to the statute in such cases made and provided,
unless my children and legatees otherwise agree with her. To
each of my children, Ralph Edward Starkweather, Julia Ma-
ria Starkweather, Charles Huntington Starkweather, Chaun-
cey Clark Starkweather and Frank Henry Starkweather, I
give and devise each an undivided eighth of my estate, to
have and to hold to them, their heirs and assigns forever.
''Seventh — Should my wife not elect to take the eighth, un-
der this, my will, in lieu of dower, then I give and bequeath
an undivided sixteenth of my estate to the American Board
of Commissioners for Foreign Missions, to be by them ex-
pended for the uses of the said Society. One undivided six-
teenth of my estate I give and bequeath to the Presbyterian
committee of Home Missions, incorporated by the State of
1871.] Thompson v. Mason et al. 211
Statement of the case.
New York in 1862, to be expended for the appropriate ob-
jects of the said Mission. One undivided sixteenth of my
said estate I give and bequeath to the trustees of the Presby-
terian House, incorporated in 1855 by the legislature of
Pennsylvania, to be by them expended for the use of Sabbath
schools and for Sabbath school purposes; and an undivided
sixteenth of my estate I give and bequeath to my two young-
est children, Chauncey Clark Starkweather and Frank Henry
Starkweather, to be divided equally between them, and to
have and to hold to them, their heirs and assigns forever.
This bequest is in addition to what they receive under the
previous provision of this, my last will. The legatees in this
clause are not to be entitled to the same, or the income of the
same, till my youngest child becomes of age, and the estate is
divided as herein provided.
"I give and bequeath to my wife, Mary E. Starkweather,
all my household furniture and all my library, wherever the
same may be, to have and to hold to her heirs and assigns
forever : Provided, however, that it is my wish that, at the
majority of my youngest child, my library be divided equally
among my children.
"Nothing in this will contained shall be construed as en-
titling any of the benevolent institutions to whom bequests
are made to any part of the income of my estate prior to the
time of the division of the same, according to the provisions
of this will ; all income and profits of the estate, prior to that
time, are to go to my wife and children."
Charles P. Starkweather died the next day after the date
of his will, the 27th day of August, 1867, and on the 16th
day of September, 1867, the will was admitted to probate in
the county court of Cook county.
Mrs. Starkweather electecl to take under the provisions of
her husband's will by two separate instruments in writing
filed in the county court, one dated February 23, 1870, and
the other July 19, 1870. She made her will on the same day
212 Thompson v. Mason et al [Sept. T.,
Statement of the case.
with the date of the last of the above named instruments, and
died October 4th, 1870. Her will was admitted to probate
November 15th, 1870, and contains the following clauses
bearing upon the questions before the court :
"Under and by virtue of the last will and testament of my
deceased husband, Charles R. Starkweather, I am entitled to
receive from his executors the one-third part of the net an-
nual income of his estate until such time as his youngest
child shall attain his majority. In case of my decease before
such time it is my will, and I direct, that my executors col-
lect and receive' from the executors of my said husband my
share, namely, the one-third part, of the said annual income,
as and whenever the same or any part thereof may be due and
payable \>y them, and for such time as under the said will of
my said deceased husband the same shall be payable ; and
that as soon as conveniently may be, after the said income or
any installment thereof shall be received by my executors, the
same shall be divided among all my children now living,
share and share alike, and upon their several and respective
receipts, paid over to them respectively.
"Under and by virtue of the said last will and testament of
my deceased husband, I am entitled, on the final division of
his estate, when his youngest son shall attain the age of
twenty-one (21) years, to receive the one-eighth (J) part of
his said estate as my own absolutely, if I elect to receive and
accept the same in lieu of dower. I have heretofore, by an
instrument in writing, elected to accept the provisions of his
will in lieu of my dower in his estate, which election I here-
by affirm. And in case of my decease before the said final
partition and division of his estate, it is my will, and I here-
by direct, that the following disposition be made of my inter-
est of the one-eighth (J) part aforesaid of his estate, to wit, as
follows: (making divers bequests of sums of money,) which
said foregoing legacies are to be paid out of my said interest
of one-eighth (J) in the estate of my said deceased husband,
1871.] Thompson v. Mason et al. 213
Opinion of the Court.
without interest, but as soon as may be after the final division
of his estate, as provided in his last will and testament afore-
said.
"To my son, Charles Huntington Starkweather, I give and
bequeath the sum of one thousand dollars (§1000), which I
direct my executors to pay, in one year from my decease, out
of the share payable to me of the income of the estate of my
deceased husband, as hereinbefore mentioned. And it is my
design that this shall represent to him a wedding gift from me,
in case of his marriage.
"Finally, all the rest and residue of my estate, wherever
situated, and from whatsoever source derived, it is my will,
and I hereby direct, to be divided equally between all my
children now living, share and share alike."
The executors of Charles R. Starkweather duly received
Mrs. Starkweather's papers expressing her intention to take
under her husband's will, and she received from them one-
third of the net income of his estate down to September 16th,
1870.
His youngest child is living, and was only eighteen years
of age July 13, 1871.
The court below, on a hearing, rendered a pro forma de-
cree, holding that the devisees of the widow took one-eighth
of the estate of her husband, and were entitled to one-third
of the net income from her husband's estate, as she would
have been had she lived until the youngest child became twen-
ty-one years of age. The guardian and others prayed and
perfected an appeal to this court.
Messrs. Scammon, McCagg & Fuller, for the appellants.
Mr. Edward S. Isham, for the appellees.
Mr. Justice Sheldon delivered the opinion of the Court :
There are two questions presented for our determination as
arising under the will of Charles R. Starkweather, the first
214 Thompson v. Mason et al [Sept. T.,
Opinion of the Court.
and the main one being whether the one-eighth interest in the
estate became a vested interest in Mrs. Starkweather, so that
she made a valid disposition thereof by her will.
It is insisted on the part of the appellants, they being the
two youngest children, and the three charitable institutions to
whom the one-eighth of the estate given to Mrs. Starkweather
was devised over by the seventh clause of the will in case she
should not elect to take the same in lieu of dower, that the
election she did make was prematurely made and therefore
void, so that no interest vested in her, and the devise over to
them took effect.
The testator devised to his wife one-eighth of his estate,
"provided she then (that is when the youngest child attains
twenty-one years of age) elects to receive the same in lieu of
dower in my estate;" and it is contended that this was a de-
vise upon a condition precedent not only that she should elect,
but that she should elect at the specified time, to take it in lieu
of dower ; that a condition precedent must take place before
an estate can vest; that it must be strictly performed, and
that the election here could be made only at the time fixed by
the testator, that is, when the youngest child attained his ma-
jority.
The point of difference that here arises is, whether it was
the intention of the testator to make it a condition precedent
to the vesting of this estate, that the election to take it in lieu
of dower should be made at, and not before, this particular
time.
The testator, having in view the protection of his wife's in-
terest, and to guard against an indiscreet election, might have
made it a condition precedent that she should not exercise her
right of election before a specified time. But the will dis-
closes no such motive on the part of the testator. The great
purpose of the will was, as appears, to keep the property to-
gether under the management of the executors, they paving
over the rents and profits to the wife and children until the
youngest child became of age, when the property was to be
1871.] Thompson v. Mason et al. 215
Opinion of tlie Court.
divided and the devisees take their respective shares. So
far as concerned this purpose, the election to take under the
provisions of the will, in lieu of dower, might as well be made
before as at that particular time.
To make it a condition precedent to the vesting of the es-
tate that this election should be made at, and not before, the
time in question, would not appear to subserve any purpose
of the will, or to accord with any expressed intent of the tes-
tator.
The words in the fourth clause of the will giving the eighth
of the estate to Mrs. Starkweather, "provided she then elects
to receive the same in lieu of dower," lend*some countenance
to the idea of a condition precedent, but it is removed by the
immediately succeeding proviso in the same sentence : "pro-
vided, however, that my wife is not required to elect whether
she will take the eighth under this will in lieu of dower, until
the time for partition of my estate under this my will."
This language clearly implies that she may elect before that
time, although she can not be compelled so to do ; for, why
provide that she should not be required to elect before that
time if she had no right to elect until that time arrived?
Under the statute the widow must make her election with-
in one year after the probate of the will, whether she will take
a devise under it or take her dower. Taking the whole clause
together, its apparent meaning is that the widow may elect, at
any time prior to the time for the final division of the estate,
to accept the provisions of the will in lieu of dower, but shall
not be required to do so, and that her election can not be
postponed beyond that time. She must then elect, if she has
not before elected ; the election must be made by that time.
For which there is good reason, as the time having come for
the distribution of the estate, it would be important to know
whether it wTas to be disencumbere'd of dower or not. But
no reason is perceived why the widow might not exercise her
right of election as well before as at that particular time, and
any such condition of the devise, that the exercise of such
216 Thompson v. Mason et al. [Sept, T.,
Opinion of the Court.
right could not take place before, but only at that time, would
seem to be a merely arbitrary and frivolous one, the making
of which should not be imputed to the testator in the absence
of a clearly expressed intention to that effect.
We must adopt the contrary construction from that of the
appellants, and hold that the election by Mrs. Starkweather,
although made prior to the coming of age of the youngest
child, to accept the provisions of the will in lieu of dower,
was valid, and the eighth of her husband's estate consequently
vested in her and passed by her will to the legatees named
therein.
The other question presented for determination is, whether
Mrs. Starkweather's right to one-third of the income of the
estate determined with her life, or was she the absolute owner
of such one-third until the majority of the youngest child,
so that she had the power to dispose of it by will.
The paramount purpose in this will was, that the estate of
the testator should be kept intact until the youngest child
became of age. Even should his wife prefer to take her
dower, the wish of the testator is apparent that the entirety
of his estate should not be broken in upon by any assignment
of dower before the arrival of the time he had fixed upon for
its division, as the fourth clause contemplates that as the time
when dower should be assigned, if at all.
In furtherance of this leading purpose of the testator, as
would seem, he directed that his wife should not be required
to elect between the provisions of the will and dower until the
time for the division of the estate, and in the meantime, to
remove all inducement to ask for the assignment of dower, he
places her in as favorable a situation as if her dower were
actually assigned to her, by giving her one-third of the net
income of his estate. The direction in the third clause is,
"to pay one-third thereof (the net income of the estate) to my
wife till the majority of my youngest child, which one-third
is to be for her dower in my estate." It is to be marked that
the testator does not stop with the words "to pay one-third
1871.] Thompson v. Mason et al. 217
Opinion of the Court.
thereof to my wife till the majority of my youngest child,"
but adds, "which one-third is to be for her dower in my es-
tate."
The death of the wife before the majority of the youngest
child was an event evidently not in the contemplation of the
testator. This one-third of the net income seems to have
been a temporary provision for the widow, designed to stand
for and take the place of dower for the time limited. It is
expressed to be, "for her dower in my estate." It is the
measure of dower in extent of interest. Dower imports a
life estate, and we regard the true construction to be that this
was in the nature of a dower estate with its incident of du-
ration ; and as her dower estate would have determined with
her life, so this right to one-third of the income of the es-
tate terminated at that time.
To this view, as respects dower, the appellant's counsel op-
pose the objection that the word dower includes, under our
statute, one-third of the personal estate forever, after the pay-
ment of debts, and therefore the term should not be taken to
import a life estate any more than an absolute one.
We are not aware of any legal sanction for giving such scope
to the term dower, save in the act to amend "An act concern-
ing wills," passed in 1847. It is there declared, "The word
1 dower/ as used in the 46th section of the 109th chapter of
the Revised Statutes, entitled 'Wills/ shall be construed to
include a saving to the widows of persons dying intestate, of
one-third of the personal estate forever, after the payment of
debts." But even this definition would not include any per-
sonalty here, as it is not a case of intestacy.
We have no doubt the testator, in his use of the term, meant
dower proper, and it is in that sense we have considered it.
The court below made a pro forma decree which, upon the
first question, accords withythe views we have expressed ; but
upon the second question it adjudged that Mrs. Starkweather
had an absolute and vested interest in one-third of the net
income of the estate until the youngest child arrived at the
218
Marshall et at. v. Silliman et al [Sept. T.,
Syllabus.
age of twenty-one years, and that she made a valid disposi-
tion thereof by her will ; as respects which last question, the
decree is held to be erroneous, for which reason it is reversed
in that respect, and the cause remanded for further proceed-
ings in conformity with this opinion.
Decree reversed.
Ephraim Marshall et al.
V.
Edward C. Silliman et al.
1. Constitution — subscription to railroad stock. An act authorizing a
township to vote to subscribe for stock to a railroad, and to issue bonds in
payment of the same, is allowable under the constitution of 1848.
2. Subscription for railroad stock — notice — conditions. Where the
requisite number of persons petition the supervisor to call an election for
the purpose of voting whether the township shall subscribe for stock and
issue bonds to pa}r therefor, and name a number of conditions of subscrip-
tion, and the supervisor gives a notice without specifying any conditions,
and the vote results in favor of subscription, the omission to specify the
conditions in the notice will not invalidate the bonds.
3. Election— -for two propositions on the same day. Where a notice was
given that a vote would be had on a particular day to vote for and against
subscribing $35,000 to the stock of a railroad, and subsequently another
notice was given for an election on the same day for another subscription
to the same road, for another sum, both elections were legal. One did not
invalidate the other.
4. Bat the latter sum being voted in a town meeting, without any
authority, it was void, and conferred no power on the town authorities to
issue railroad bonds. The law having limited the subscription to $35,000,
the vote of the town meeting was wholly unauthorized.
5. Void election — curative law. In case of such a void proceeding,
the legislature has no power, under the constitution, to pass a law render-
ing the election and subscription valid. It would be to compel a munici-
pal corporation to incur a debt for purely a local municipal purpose.
1871.] Marshall et al. v. Silliman et al. 219
Opiuiou of the Court.
6. The legislature lias no power to authorize a supervisor and town
clerk to create a corporate debt without the consent of the people, as the
power to impose taxes or to create a corporate debt is not incident to
their offices. But even if such power existed under a curative act of this
Character, it will not be inferred that they exercised a discretion in making
the subscription, but that they felt they were bound to do so under the re-
quirements of the act. It gave' those officers no choice to act or not, but
declared the election valid and binding on the township, and declared the
subscription might be collected.
7. The case of Cowgill v. Long, 15 111. 202, considered and distinguished.
8. Tax — injunction. In such a case, the tax levied to meet the interest
on the bonds issued under the curative act should be enjoined, and if the
bonds have not been negotiated, the railway company should be required
to surrender them for cancellation.
9. Election — petition — notice. The petition to the supervisor to call an
election was without date, but the notice fixed a time and place for the
election, which was a sufficient compliance with the law.
Appeal from the Circuit Court of Knox county; the Hon.
Arthur A. Smith, Judge, presiding.
Messrs. Wead & Jack, for the appellants.
Messrs. Harding & McCoy, and Mr. J. S. Stevens, for
the appellees.
Mr. Chief Justice Lawrence delivered the opinion of
the Court :
On the 5th of March, 1867, the legislature passed an act
incorporating the Dixon, Peoria & Hannibal Railroad Com-
pany. The sixth section authorized townships through which
the road might pass to take stock therein, not exceeding S35,-
000 for each township. The question of subscription was to
be submitted to a vote of the people, which was to be taken
upon a petition, signed by twenty-five legal voters, being pre-
sented to the town clerk/who was thereupon to give twenty
days notice of the time and place of holding the election.
Under this law, a petition was presented to the supervisor
of Brimfield township, in the county of Peoria, dated July 9th,
220 Marshall et at. v. Silliman et al. [Sept. T.,
Opinion of the Court.
1868, signed by twenty -five legal voters, and asking that an
election be held on the 3d of August following, to vote upon a
subscription of $35,000 to the stock of the road. The petition
proposed that the subscription should be upon condition that
the road should be graded, bridged and tied within the limits
of the town by January 1, 1871, and that the bonds should be
issued, §15,000 when the road should be graded, and $20,000
when bridged and tied — the bonds to be payable in ten, fifteen
and twenty years. The election was held and the vote was in
favor of the subscription.
On the same day with this vote, another was taken, to de-
termine whether the town should subscribe $15,000 in addition
to the $35,000. The only authority for taking this vote was
derived from the provisions in article 4 of the township or-
ganization law, in regard to special town meetings. This vote
also resulted in favor of taking the additional stock.
On the 9th of March, 1869, the legislature amended the
charter of the company and authorized towns to take stock to
the amount of $100,000. Acting under this amendment, on
the 13th of April, 1869, another petition for an election,
signed by twenty-five voters, was presented to the supervisor,
proposing an additional subscription of $25,000, with condi-
tions somewhat similar to those annexed to the first petition.
[Notice was posted on the same day, and on the 4th of May
the vote was taken with the same result as before, and subse-
quently the town issued its bonds for $75,000, and subscribed
to the stock for that amount, being the total of all the sums
for which a vote was taken.
The bill in this case was filed by certain tax payers of the
town to enjoin the railway company from negotiating the
bonds, and the county treasurer from collecting the taxes as-
sessed for payment of interest. The taxes sought to be en-
joined are the first that have been assessed for this purpose.
On the hearing, the circuit court dismissed the bill.
Before considering separately the different proceedings upon
which these bonds were issued, we will refer to one objection,
1871.] Marshall et ah v. Silliman et ah 221
Opinion of the Court.
going to the validity of all the bonds. It is very earnestly ar-
gued that all acts of the legislature, giving to municipalities
the power to take stock in railroad companies and issue bonds
therefor,- are unconstitutional.
In regard to this, we desire only to say that it can no longer
be considered an open question in this court. As to the fu-
ture, our new constitution has removed this subject from the
domain of controversy. As to the past, the decisions of this
court, beginning with the case of Prettyman v. Tazewell County,
19 111. 406, and repeated in numerous cases since that time,
have solemnly affirmed the validity of these acts. Under
these decisions, and in consequence of them, the counties,
towns and cities of the State have issued bonds amounting, in
the aggregate, to many millions, and these have gone into the
hands of bona fide purchasers all over the commercial world.
If, under these circumstances, this court were to reverse its
decisions, and thereby destroy the value of this immense
amount of property, nay, if we were to treat the question as
one admitting of discussion, we should show but a poor appre-
ciation of the responsible duties of our office. If the ques-
tion were a new one, we know not to which side our delibera-
tions might incline us, but the highest considerations of justice
require us to follow, unhesitatingly, decisions which have
drawn after them consequences so important. They have the
peculiar sacredness which attaches to decisions that have be-
come established rules of property. Indeed, we could pro-
bably pronounce no judgment affecting the title to realty, that
would cause such loss to persons acting on the faith of former
decisions, as the one we are now asked to render.
The legislature can repeal a statute without disturbance of
vested rights, for such repeal acts only upon the future. But
a reversal of a judicial decision acts upon all the past, and
sweeps away all the rights^'acquired upon faith in a rule de-
clared by the court of last resort to be the law. Hence the
doctrine of stare decisis, and no case could more cogently de-
mand its application than the one before us. We decline,
222 Marshall d at. v. Silliman et al. [Sept. T.,
Opinion of the Court.
therefore, to consider the argument upon this point, remark-
ing-, however, that the former decisions of this court are in
accord with those made by the highest courts of almost every
State in the Union.
\Ye proceed to the consideration of these different votes.
There are but two objections taken to the vote for the $35,-
000. They are, first, that the notice of the vote or election
given by the supervisor did not specify the conditions above
stated, named in the petition to him, signed by the twenty-five
voters, on which they proposed to have the bonds issued ; and,
second, that the vote for the $15,000 was held at the same
time. Neither of these objections has any validity. The law
merely required the supervisor, upon petition, to give a notice,
and this he did. It is true, the public might have inferred
from the notice that the vote was to be upon the issue of
bonds, without conditions for the protection of the township.
If that were so, the effect would simply have been that more
persons would be induced to go to the polls for the purpose of
defeating the project than would have gone if the notice had
specified the conditions. If the notice had specified them, and
they had been subsequently disregarded, there might have been
excellent ground of complaint. But the notice was in a form
best adapted to draw out all the opposition to the proposed
vote, and if the conditions were observed in issuing the bonds,
as we presume they were, in the absence of objection on that
ground, the tax payers have no cause for complaint. Their
interests have been guarded in a greater degree than the notice
of the vote indicated they would be, in case there should be a
majority for subscription.
As to the other objection, we do not see what bearing the
separate vote for the $15,000 had upon the vote for the
§35,000, or how it affected the validity of the latter.
As to the vote for the $15,000, it is not claimed by counsel
for appellees that it was valid at the. time. The charter author-
ized $35,000, and only that sum, to be subscribed by the town,
and the vote upon this was to be taken in a manner specially
1871.] Marshall et al. v. Silliman et al. 223
Opinion of the Court.
pointed out. That mode was adopted in reference to the vote
for that sum. But the vote for the $15,000 was simply a vote
at a special town meeting, called on the application of twelve
voters, under the general township organization law, which con-
ferred no authority whatever on the township authorities to
hold this election. It was an utterly void proceeding. The
town had no power to take railway stock and issue railway
bonds independently of legislative action, and this vote could
give none. The law limited the stock to $35,000.
It is, however, insisted by appellees, that an act of the legis-
lature, passed April 17th, 1869, made the election and the
bonds issued thereunder valid. That act is as follows, and
will be found in vol. 3 of Private Laws of 1869, p. 372:
" Section 1. Be it enacted by the People of the State of
Illinois, represented in the General Assembly, That a certain
election held in the township of Brimfield, in Peoria county,
on the third day of August, 1868, at which a majority of the
legal voters in said township, in special town meeting, voted
to subscribe for and take $15,000 of the capital stock of the
Dixon, Peoria & Hannibal Rariroad Company, over and above
the amount authorized to be taken by the charter of said com-
pany, is hereby legalized and confirmed, and is declared to be
binding upon said township, and may be collected from said
township in the same manner as if said subscription had been
made under the provisions of said charter."
This law, if valid, had the effect of creating a debt of $15,-
000 against this township. It declares that the subscription
is binding, and may be collected from the township in the same
manner as if it had been legally made. Before the passage of
this act, it was not binding, and could not be collected. If it
is now binding, it became^so for the first time at the passage
of this law, and is so solely by force of the law.
The question, then, whether the subscription is binding,
does not depend merely upon whether the legislature can pass
224 Marshall, et al v. Silliman et al. [Sept. T.,
Opinion of the Court.
a retrospective law, but upon whether it can create a debt
against a town, and require the town to assess a tax for its
payment.
That this is the real question can not be denied. It can not
be said that the town has ever consented to the creation of
this debt. The so-called vote was an idle form. Persons op-
posed to the subscription were under no necessity or obligation
to vote against it, because they had a right to regard the entire
proceeding as a nullity. The vote can no more be accepted as
the action of the town, or as giving the consent of the town
to the creation of this debt, than would a resolution adopted
by the same number of persons at one of their dwellings, or
in a casual encounter at a street corner.
Neither can the subsequent issue of the bonds on the 5th of
May, 1869, be taken as showing the assent of the town. That
was the mere ministerial act of the supervisor and clerk, per-
formed in obedience to the act of the legislature.
We come, then, to the question, whether the legislature can
create a debt against a municipal corporation for municipal
purposes, and subject it to a tax for its payment, without its
consent. "
Our new constitution expressly prohibits this for the future,
and the decisions of this court substantially hold that it could
not be done under the constitution of 1848.
The 5th section of the 9th article of the constitution of
1848 provides that, "the corporate authorities of counties,
townships, school districts, cities, towns and villages, may be
vested with power to assess and collect taxes for corporate pur-
poses; such taxes to be uniform in respect to persons and prop-
erty within the jurisdiction of the body imposing the same."
In Harward v. The St. Clair & Monroe Levee Drainage Co.
51 111. 130, we held this clause was an implied limitation upon
the power of the legislature to grant the right of corporate
taxation to any but the corporate authorities. In the subse-
quent case of TJie People ex rel. etc. v. The Mayor of Chicago,
ib. 30, we went further, and held that, although there might
1871.] Marshall et ah v. Silliman et ah 225
Opinion of the Court.
be cases where the legislature, without the consent of the cor-
porate authorities, might impose taxes, local in their character,
if required by the general good government of the State, be-
cause such taxes would not be for corporate purposes merely,
yet the legislature could not compel a municipal corporation,
against its own will, to issue bonds or incur a debt for a merely
corporate purpose, like the creation of a public park, or other
local improvement. In the last cited case, the precise ques-
tion under consideration was fully considered, and it is un-
necessary to repeat what was there said. See also Hessler v.
Drainage Com. 53 111. 110, and Lovingston v. Wider, ib. 302.
These cases show it to be the settled doctrine of this court,
that, under the constitution of 1848, the legislature could not
compel a municipal corporation to incur a debt for merely local
purposes, against its own Avishes, and this doctrine, as already
remarked, has received the sanction of express enactment in
our existing constitution.
That was the eifect of the curative act under consideration,
and it was therefore void.
It is said, however, by counsel for appellee, that the legisla-
ture might have authorized the town supervisor, and town
clerk, as the corporate authorities of the town, to subscribe to
the stock of this road, and issue township bonds therefor,
without a vote of the people, and that the curative act is to be
considered as giving them that power, which they have duly
exercised. The case of the Town of Keithsburg v. Frick, 34 111.
420, is cited in support of this position.
It was said in that case, that the legislature might grant that
power to the trustees of a town, if it thought proper to do so,
without taking a vote of the people. AVe do not dissent from
that position, but it does not aid the appellees in the present
case. The town supervisor and clerk, who issued these bonds,
do not represent a township', as the board of trustees represent
an incorporated town, or the common council represent a city.
The supervisor and town clerk are but a part of the corporate
authorities. They have no power of taxation, nor power, of
15 — 6 1st III.
226 Marshall et al. v. Silliman et al [Sept. T.,
Opinion of the Court.
themselves, to bind the city in any way. The case of Loving-
ston v. Wider, supra, may again be cited. We said there that
the police commissioners were not the corporate authorities of
East St. Louis, as they had not been elected by the people of
the city, nor appointed in any manner to which the people had
given their consent, and therefore the legislature could not give
them the power of taxation, by creating a debt binding upon
the city. So of the supervisor and clerk. Though elected by
the people, they were not elected for the purpose of creating a
debt or imposing a tax, and the legislature could not clothe
these two officers, without the consent of the people, with a
discretionary power of taxation or of creating a debt, because
they are not, by themselves, the corporate authorities, in the
sense of the constitution.
But even if these two officers could be recognized as the
corporate authorities, they can not be said to have voluntarily
incurred this debt on behalf of the town. The act gave them no
discretion. It declares the subscription shall be binding, and
may be collected. It did not authorize the corporate authori-
ties to subscribe to the stock or not, as they should think
proper, but declared that an illegal vote should be a valid sub-
scription, and left to the town authorities only the ministerial
function of executing the behest of the legislature.
Counsel for appellees claim that this case is like that of Cow-
gill v. Long, 15 111. 202. There is, however, a broad distinc-
tion. The tax, in that case, was a valid tax, and when the
court say, in their opinion, that it was improperly voted in
July, they evidently mean merely that it was improperly voted
in that month, for the purpose of collection during the current
year. The tax was legally imposed, and the only question de-
cided by the court was, that the subsequent act of the legisla-
ture legalizing the steps by which the tax was illegally certi-
fied to the county court and placed in the course of collection
during that year, was so far effectual that the tax could be col-
lected by virtue of the act. The act dealt with a subject en-
tirely under the control of the legislature, namely, the subject
1871.] Marshall et al. v. Silliman et ah 2T1
Opinion of the Court.
of remedy. The question before the court was very different
from the ratification of a void tax by retrospective legislation,
which the legislature could not, of its own power, impose pros-
pectively.
Our conclusion is, that the so-called curative act was a vio-
lation of the constitution. Its object was to compel this town
to issue its bonds for railroad stock independently of its own
wishes, and this was beyond the limits of legislative power.
It sought to accomplish this by declaring that a void proceed-
ing was a valid one; that a vote confessedly illegal was in fact
legal. But this vote was an accomplished fact. Whether it
was within the corporate powers of the town, and binding
upon its people, was a question which no subsequent legisla-
tion could affect ; and when the legislature undertook to say
that this vote created a valid obligation against the town, when
it did not, it was attempting, by its own act, to create a cor-
porate debt. So far as the tax was assessed for the payment
of interest on the bonds for $15,000, which, we understand
from the record, were a distinct issue, it should have been en-
joined; and if the bonds have not been negotiated, the com-
pany should be required to surrender them.
The objections taken to the vote for the last subscription
of $25,000 are not valid. The town had, in the meantime,
been authorized to subscribe to the amount of $100,000, and
this last subscription was in substantial compliance with the
law.
It is objected that the petition to the supervisor to call the
meeting did not specify the day when the meeting should be
called, as required by the law. We consider that provision
of the act as merely directory and immaterial. If the notice
posted by the supervisor set forth the time and place for hold-
ing the election, it was certainly of no consequence that the
date was left blank in the^petition. It Avould be difficult to
fix the day in that, as twenty-five signers had to be procured,
which might be the work of considerable time.
228 Hubbard v. Hubbard et al. [Sept. T.,
Syllabus.
As the petition was merely presented to the supervisor to
authorize him to act, we can not discover any importance to be
attached to the absence of a date for the meeting. It was suf-
ficient if stated in the notice.
We are of opinion the subscription and bonds were valid
as to the $35,000 and the $25,000, but not as to the $15,000.
The decree of the court below is reversed and the cause re-
manded.
Decree reversed.
Mr. Justice Walker: I fully concur in all that is said
in reference to the constitutional power of the town to vote
the subscriptions; but, inasmuch as the present holders of the
bonds are not parties to the bill, and as they have a direct in-
terest in the tax sought to be enjoined, I think the decree of
the court below should be affirmed for the want of parties. I
therefore refrain from the expression of any opinion as to the
regularity or validity of the election, or the issue of the bonds,
and think the decree should be affirmed.
Ferdinand B. Hubbard
V.
Solomon Hubbard et al.
1. Judgment on award — whether may be questioned. In a suit in chan-
cery to enjoin the collection of a judgment obtained upon an award, it was
complained that the arbitrator gave no notice to the parties of the hearing
before him: Held, that as the fact of such omission must have been known
to the complainant on the trial of the cause on the award, and could have
been then determined, equity could not relieve against it.
2. The object to be determined by the arbitration was the balance due
from complai nant, as purchaser of a certain lot of ground, to his grantor, and
it was further complained that the arbitrator had an interest in the subject
1871.] Hubbard v. Hubbard et al. 229
Opinion of the Court.
matter submitted to him. It appeared the arbitrator was only interested
in this way : The money which the grantor had received in part payment
for the land was not paid b}' complainant directly to him, but was loaned
to the arbitrator and by him advanced to the grantor: Held, as complain-
ant well knew of such interest of the arbitrator when he chose to submit
the matter in dispute to him, he could not be allowed afterwards to set up
such interest to defeat, the award.
Appeal from the Circuit Court of Whiteside county; the
Hon. William W. Heaton, Judge, presiding.
Mr. J. B. Rice, for the appellant.
Messrs. Sackett & Bean, for the appellees.
Mr. Justice Breese delivered the opinion of the Court :
This was a bill in chancery to enjoin the collection of a
judgment for sixteen hundred dollars which Renselaer M.
Firman had obtained against the complainant in the White-
side circuit court at the October term, 1861.
It appears the judgment in question was obtained on an
award made by Solomon Hubbard, mutually chosen by the
parties to the judgment, on this submission :
"This is to certify that I promise to pay Renselaer M. Fir-
man, in addition to what I have already paid him for lot 1,
of the southwest quarter of section 18, town 20, range 5,
whatever Solomon Hubbard decides is due from me to him."
The arbitrator awarded sixteen hundred dollars as the
amount due. The record of this judgment was taken by ap-
peal to this court and the same was affirmed. Hubbard v. Fir-
man, 29 111. 90.
Solomon Hubbard is made a party to the bill, on the allega-
tion that, at the time of the submission, he, himself, wras inter-
ested with Firman in the matters submitted, and also in the
land conveyed by Firman to appellant; he, the arbitrator,
expecting to receive a part of the award which he might ren-
der against appellant, and a part of the judgment which Fir-
man might obtain on the award, and that this arrangement
230 Hubbard v. Hubbard et al. [Sept. T.,
Opinion of the Court.
was fraudulently and purposely kept secret from appellant,
and of which he had no suspicion or knowledge ; and on the
further allegation that it was impossible for appellant to ob-
tain testimony of the facts on the trial of the cause on the
award, and until after the cause had been appealed to the
supreme court ; and he alleges that both the award and the
judgment thereon were obtained by the fraud of Solomon Hub-
bard and Firman.
The action on the award was hotly contested, as would ap-
pear by the pleas filed by the appellant, being six in number,
which must have embodied all legal defenses in the power of
the appellant.
It is complained here that Solomon Hubbard, acting as
arbitrator, gave no notice to the parties of the hearing before
him. This must have been known to appellant on the trial
of the action at law, and was then tried or could have been
tried. Chancery can not relieve in such case. The interest
of the arbitrator could have been known and disclosed on the
trial of that action, for he was sworn as a witness and could
have been interrogated as to that fact. We do not see how it
wras impossible to obtain the testimony in regard to such in-
terest on that trial.
As to the interest of the arbitrator in the subject matter
submitted to him, we can not perceive any of which appellant
was not well advised when he chose him as a fit person to
adjust the matter between him and Firman. The money
which Firman received in part payment of the land, appellant
well knew was not paid by him directly to Firman, but was
loaned to Hubbard, and by him advanced to Firman, and to
that extent, and to that only, Hubbard had an interest in the
matter submitted. This, appellant well knew, and if he chose
to submit the matter to Hubbard under such circumstances he
was at perfect liberty so to do, and he will not be allowed
afterwards to set up such interest to defeat the award.
\Ye perceive nothing in the record to implicate Hubbard in
any fraud in his award. Opinions differ as to the value of
1871.] T., P. & W. R. R. Co. v. Darst. 231
Syllabus.
the land. The consideration expressed in the deed from Fir-
man to appellant is sixteen hundred dollars, and several wit-
nesses estimate it at twenty or thirty dollars per acre, while a
much larger number are of opinion it was not worth more than
four dollars per acre, yet appellant claims to have paid Fir-
man much more than that.
On the whole record Ave can not see that injustice has been
done appellant, ai.d must affirm the decree.
Decree affirmed.
Toledo, Peoria &> Warsaw Railroad Co.
v.
John Darst.
1. Eminent domain — railroad — damages. On an appeal in the circuit
court in a case for the assessment of damages on the condemnation of the
right of way for a railroad, the statute has giveu a trial by jury.
2. Damages — estoppel. Where a railroad company went upon land and
built their road without procuring the right of way, and occupied it for
twelve years and then instituted a proceeding to condemn the right of
way, the company have no right to insist that the owner is estopped to
claim damages. He can only be barred bj' the statute of limitations, and
not by mere non-claim for a less period than the statute has prescribed, to
bar his claim.
3. Sale — of land. The mere fact that the company entered upon the
land and constructed their road, and occupied it for about thirteen years,
can not be held to raise a presumption that the owner had sold the right
of way to the company.
4. License to enter. The mere fact that the company have been
long in possession, in the abser/ce of all proof, will not raise a presumption
that the owner had given a license to enter and construct their road, and
in the absence of such a license the company must be held liable for dam-
ages resulting to other lands of the owner from the construction of the
road.
232 T., P. & W. R. R. Co. v. Darst. [Sept. T.,
Opinion of the Court.
Appeal from the Circuit Court of Woodford county; the
Hon.S. L. Richmond, Judge, presiding.
Messrs. Bryan & Cochran, for the appellant.
Messrs. Johnson & Hopkins, for the appellee.
Mr. Justice Walker delivered the opinion of the Court:
This was an application to the judge of the circuit court of
Woodford county, in which the land is situated, on the 16th
of August, 1869, to obtain title to lands occupied by appel-
lant's road over two forty and one eighty-acre tracts of land
owned by appellee. The petition asked the appointment of
commissioners under the act of the legislature, approved Feb-
ruary 12th, 1849, incorporating the Peoria & Oquawka Rail-
road Company, of which appellant is the successor. The judge
made an order appointing three persons to act as commission-
ers under the provisions of the law. On the 23d of the same
month the commissioners met, were sworn, went upon the
premises and examined the ground, heard testimony, and de-
termined that appellee would sustain no damages by the appro-
priation of the land to railroad purposes. Their report was
filed at the December term, 1869, and appellee moved to have
the assessment set aside and that a reassessment be made,
and notice of his application was served upon appellant. The
court, at the ensuing April term, granted the motion and pro-
ceeded to hear the evidence, and assessed appellee's damages
at §1250, but on motion of appellant set aside the assessment
thus made.
At the succeeding August term a trial was had by the court
and a jury, resulting in a verdict in favor of appellee for
$1220 damages. A motion for a new trial was overruled, and
the record is brought to this court on appeal.
It is insisted that the trial by jury was unwarranted by the
law, but the assessment should have been made by three com-
missioners. It is only necessary to say that the case was set
1871.] T., P. & W. E. R. Co. v. Daust. 233
Opinion of i lie Court,
down for trial in the court by consent of parties, on a speci-
fied day, and when the time arrived a trial was had, both par-
ties being present and no objections being made. But the act
of 1852, relating to right of way, (Sess. Laws 1852, page 146,)
by the 14th section, has expressly declared that, unless the
parties shall otherwise agree, the trial in the circuit court shall
be by a jury. And this case has been tried by a jury in con-
formity with that act.
It is urged that appellee is estopped to claim damages be-
cause he has failed for such a length of time to institute pro-
ceedings to recover damages ; that we must presume that he
considered it a benefit and not an injury or he would have
taken steps to recover his rights. We are aware of no rule of
law which creates such a presumption short of the statutory
period which bars a recovery. No one would contend that,
because a trespasser had gone upon the lands of another and
occupied them for fifteen years, when an action of trespass
was brought he could not recover for such portion of the time
as was not barred by the statute. It would present a novel
defense to insist that it must be conclusively presumed that it
was a benefit to the owner to have the trespass committed and
continued.
It is next urged that the road was constructed over appel-
lee's land with his knowledge and consent, and that the en-
hanced value of his land is such a consideration as requires
us to infer a contract of sale which should be enforced. In
the first place we fail, on a careful examination of the entire
record, to find any proof that the road was constructed with
the knowledge and consent of appellee. The proof shows that
the road was constructed at that place in 1856. It is true, that
appellee swears that he owned the land previous to that time,
but he, nor any one else, says that he knew of it at the time.
It would be reversing all the rules by which men are enabled
to assert their rights to hold that it was only necessary to
show a party had entered upon the lands of another without
showing any authority, and occupied them about thirteen
OO
34 T., P. & W. R. R. Co. ». Darst. [Sept. T.,
.Opinion of the Court.
years, and had erected improvements beneficial to the lands
of the owner, and all others in the vicinity ; that when lie as-
serts his rights as an owner, he must be presumed to have
bargained for the sale of the land. Such a defense, we pre-
sume, has never been urged by a trespasser in an ejectment
suit, and we are unable to perceive any distinction in favor of
a railroad. It is true, no doubt, as urged, that the construc-
tion of this road has enhanced the value of appellee's lands,
but the evidence of all of the witnesses who were asked the
question, was that the benefit to adjacent lands^ over which
the road did not run was greater than to this ; and if so, why
should the rules of the law be reversed to prevent him from
asserting his rights ? These are not the character of benefits
that can be sued for and recovered by the road, as, if they
were, actions would, no doubt, have been brought by rail-
roads in all cases where lands have been enhanced by their
construction.
The note referred to in the first volume of Railway Cases,
page 47, it will be seen, refers to English cases, which hold
that, where a railway company gives notice that it will appro-
priate lands for the use of the road, it is held, under the act
of parliament, to be an agreement on their part to purchase
the lands, assented to on the part of the owner, on the terms
of making compensation. Even if it was conceded that such
was the rule of law in this country, which we do not deter-
mine, still, in this case, there is no evidence that such a notice
was given; and that compensation was never made, may be
inferred by appellant instituting proceedings to have the com-
pensation ascertained that it might be paid.
But the principal case, to which we find this note appended,
is The Baltimore & Susquehanna Railroad Co. v. Nesbit, 10 How.
R. 395, in which it is held that, after damages had been ascer-
tained, and before the assessment was set aside, a tender of
the amount of damages did not vest the company with a title
to the property or prevent another assessment binding on
1871 .] T., P. & W. K. R. Co. v. Darst. 235
Opinion of the Court.
them. We can perceive no ground for holding appellee es-
topped from claiming damages. If the company had supposed
there was a contract with appellee under which the company
entered, and that it had been lost or only rested in parol, we
niMV reasonably conclude a bill in chancery would have been
resorted to for the establishment of the rights of the company,
rather than this proceeding to condemn the land and to assess
the damages. This proceeding is strong, if not conclusive
evidence, that no sale had been made to the company, and
that they had not acquired the ri^ht to occupy the right of
way.
It is insisted that, if appellee gave a revocable license to
enter, the company were justified in all their acts, and he can
not recover damages for ditches, embankments, excavations,
obstructions or other injury, before a revocation of the license.
We have seen that there is no evidence of even a knowledge
by appellee that the company was constructing its road on his
land, much less that he gave a license. Hence it is unneces-
sary to discuss such a question.
According to the rule in the case of The Alton & Sangamon
Railroad Co. v. Carpenter, 14 111. 190, there was no error in
the mode of proceeding adopted in this case. The witnesses
on the part of appellee — and they were numerous — state that
they regard the damages sustained by him, over and above all
benefits, to be largely more than the amount assessed by the
jury. And the instructions strictly conform to the rule an-
nounced in that case, and we do not see that the jury acted on
any different rule.
It is also contended that the damages are excessive. We
have attentively read the entire evidence in the record, and
fail to find that it does not fully sustain the verdict. It can
not be justly said that the evidence preponderates in favor of
appellant. The witnesses on the part of appellant, so far as
they were interrogated, state they would prefer the Farm if
the road was on adjoining lands. They say the land is worth
more than it was before the road was constructed. This may
236 Tucker v. Gill. [Sept, T.,
Syllabus.
have been, and doubtless was, owing, to a large extent, to the
growth of the county, increase of population, the construction
of other roads and a variety of other causes. Some of the wit-
nesses say they would rather have the farm with this road
than without any road. This may be true, and still appellee
have sustained damage. But the witnesses on the part of
appellee are numerous; are of the opinion that appellee has sus-
tained damage; seem to be farmers of experience, and ac-
quainted with the property and its situation; and so far as we
can see, testify fairly and intelligently, and the jury were, we
think, fully warranted in finding the verdict they did.
A careful examination of the instructions fails to show that
they were erroneous. They were fully as favorable to appel-
lant as it had a right to ask.
Perceiving no error in the record, the judgment of the court
below must be affirmed.
Judgment affirmed.
Nathaniel T. Tucker
v.
Samuel L. Gill.
1. Judgment — confession. Where a judgment is confessed in vaca-
tion before a clerk in a circuit where that officer is authorized to receive
a confession, to be valid under the statute there must be a declaration, a
power of attorney authorizing the confession, and proof of its execution
and a plea of confession filed in the office of the clerk.
2. Same — when void. Where there was a power of attorney to confess
a judgment on a note for $26,000, the note was described in the declara-
tion which claimed $50,000 damages, and the plea of confession admitted an
indebtedness and confessed judgment for the latter sum, and the clerk ren-
dered judgment for $26,000: Held, that the attorney confessing the judg-
ment exceeded his power; that the clerk did not have power to deviate
1871.] Tucker v. Gill. 237
Opinion of the Court.
from the pi en of confession in rendering the judgment. His doing so was
unwarranted and the judgment was void, and may be attacked collaterally.
3. The clerk has no judicial power hut acts ministerially, and hence
can not do otherwise than follow the papers filed in entering a judgment
by confession. He has no power to disregard the plea of confession and
proceed to determine for what sum judgment should be entered. He must
enter judgment for the amount confessed, or not at all.
Appeal from the Circuit Court of Peoria county; the Hon.
S. D. Puterbaugh, Judge, presiding.
Messrs. McCulloch & Stephens, for the appellant.
Mr. J. S. Starr, Messrs. Ingersoll & McCune, and Mr.
H. B. Hopkins, for the appellee.
Mr. Justice McAllister delivered the opinion of the
Court :
This was replevin in the cepit, brought by Tucker & Mans-
field against Gill, in the Peoria circuit court, for some hogs, in
which there was a verdict and judgment for the defendant.
Gill justified the taking by virtue of a fieri facias issued to
him as sheriff of that county, on the 23d day of October, 1869,
upon a judgment of said court, for $26,000 damages, besides
costs, entered in vacation upon a warrant of attorney in favor
of one Eugene McCune, against Cyril L. Wood.
Tucker & Mansfield claimed title to the hogs under a pur-
chase from Wood, made on the 18th day of September, 1869.
The pleadings put in issue the validity of the judgment,
which, it is claimed, was not entered in conformity with the
warrant of attorney, was without authority, and therefore void.
That position involves the principal question in this case.
The authority of the clerk to enter judgment in vacation is
found in the act creating the 16th circuit, to which Peoria
county belongs, providing that judgment by confession may
be entered at anytime "upon filing the proper papers with the
clerk of said court, and shall have the same force and effect
as if entered in term time." Purp. Stat. 351.
238 Tucker v. Gill. [Sept. T.,
Opinion of the Court.
The expression, "upon filing the proper papers" includes
everything requisite by the common law practice in such cases.
In JRoundy v. Hunt, 24 111. 598, which was a judgment by
confession in vacation, under a statute precisely like that
abo\*e referred to, the court said : "As a condition to the right
to confess a judgment in vacation, the proper papers must be
filed with the clerk. This requirement of the statute could
have referred alone to the established practice in cases of con-
fession of judgments in courts of record. That practice re-
quires the plaintiff to file a declaration on his cause of action;
that he shall file the warrant of attorney with proof of its exe-
cution and a plea of confession. These, under the practice, con-
stitute the proper papers to authorize the confession of a judg-
ment, and the legislature has not conferred upon the clerk the
power to hear evidence and determine whether the warrant
of attorney was duly executed. Not does the act make him
the judge of the sufficiency of the papers when filed. It only
authorizes him to require papers to be filed which purport to
be in conformity with the practice. * * As the clerk can
not, under our constitution, exercise any judicial power, he
can not determine the legal sufficiency of the papers required
to be filed before the judgment is confessed."
This case also holds that the authority given to the attor-
ney must be strictly pursued. So again, in Chase v. Dana, -14
111. 262, it was said : "As a general rule, well recognized and
firmly established, an attorney in fact is held to a strict com-
pliance with the authority conferred." This is in conformity
with the English rule : "In entering up judgment on a war-
rant of attorney, the authority given by it must be strictly
pursued." 1 Tidd's Pr. 552.
The warrant of attorney in this case bears date the 29th of
September, 1869. It recites an indebtedness upon a promis-
sory note by Wood to McCune, bearing even date therewith,
for the sum of $26,000, with interest at six percent from date,
and due in one day from date ; then constitutes Robert G.
Ingersoll, or any attorney, etc., his attorney to appear in any
1871.] . Tucker v. Gill. 239
Opinion of the Court.
court of record in term time or vacation, at anytime after the
date of the note, to waive service of process and confess judg-
ment in favor of McCune upon said note for the above sum,
or as much as appears to be due according to the tenor and
effect of said note, and interest thereon to the day of said judg-
ment; to file a cognovit for the amount that may be so due,
with an agreement therein that no writ of error or appeal
shall be prosecuted upon the judgment, or bill in equity filed,
to interfere in any manner with the operation of the judg-
ment, and to release errors, etc.
The record contained an affidavit annexed to the power of
attorney, made by one Haskins and taken before McCune, the
plaintiff, as a notary public, to the effect that the note and
warrant of attorney were executed by Wood in his presence.
The declaration was upon the note with an ad damnum in the
sum of §50,000.
The cognovit contained in the record confesses a judgment
for $o0,000, and contains the agreement "that no writ of error
or appeal shall be prosecuted on the judgment entered by vir-
tue hereof, nor any bill in equity filed to interfere in any man-
ner with the operation of said judgment." It also contains a
release of all errors, etc.
In the judgment order entered by the clerk, it is recited,
"that the said defendant filed a plea to the declaration, and
therein, as to the matters and things in said declaration con-
tained, says it is true that he did assume in manner and form
as the plaintiff has declared against him, and that, by reason
of the non-performance of said promises and undertakings, the
plaintiff hath sustained damages to the amount of $26,000.
Therefore it is considered that the said Eugene McCune have
and recover of the said Cyril L. Wood the said sum of §26,000,
his damages aforesaid, in form aforesaid confessed, and also — "
etc. /
It nowhere appears in the record of that judgment, nor is
it pretended by counsel, that there was any other cognovit than
that for §50,000.
240 Tucker v. Gill. [Sept. TJ
Opinion of the Court.
When attacked collaterally, should this judgment be held
valid ? The cognovit is in plain excess of the authority given
by the warrant of attorney. It is not only the rule applicable
to this case that, in entering up judgment on a warrant of
attorney the authority given by it must be strictly pursued,
but it is a rule applicable to all cases of special agency, that
an agent constituted for a particular purpose, and under a lim-
ited power, can not bind his principal if he exceeds that
power. The special authority must be strictly pursued. 2
Kent's Com. 621.
Lord Coke has laid down the rule in the following terms :
"Regularly, it is true, that where a man doth less than the
commandment or authority committed unto him, the com-
mandment or authority not being pursued, the act is void.
And where a man doeth that which he is authorized to do,
and more, then it is good for that which is warranted, and
void for the rest. Yet, both these rules have divers excep-
tions and limitations." Co. Litt. 258 a. Judge Story, in his
work on Agency, sec. 166, says that Lord Coke is well war-
ranted in suggesting that there are exceptions and limitations.
"Where there is a complete execution of the authority, and
something ex abundanti is added, which is improper, then the
execution is good, and the excess only is void. But where
there is not a complete execution of a power, or where the
boundaries between the excess and the rightful execution are
not distinguishable, then the whole will be void." Citing
Harg. note (202) to Co. Litt. 258 a ; Alexander v. Alexander,
2 Vesey, 644; Com. Dig. Attorney c, 15; Livermore on Ag.
Ch. 5, sec. 1, p. 101, 102, (Edit. 1818.)
It is not necessary here to determine whether the boundary
between the excess and the rightful execution are so far dis-
tinguishable in this case as that the cognovit should be held
valid to the extent of the amount for which the attorney was
authorized to confess judgment, because the clerk, not pos-
sessing judicial power, had no authority to determine that
1871.] Tucker v. Gill. 241
Opinion of the Court.
question. He acts only as a ministerial officer. The plea of cog-
novit actionem was one of the papers to be filed, and was indis-
pensable to his authority to make the entry of judgment, and
when filed he nyust enter the judgment for the amount con-
fessed, or not at all; because if he does not follow the cogno-
vit as to the amount for which judgment is to be entered, that
amount must be ascertained by an assessment of the damages,
which requires the exercise of judicial functions by hearing
and passing upon evidence, with which power, under our con-
stitution, he can not be vested. To enter the judgment which
was entered in this case, the clerk must first have decided that
the cognovit was void as to the excess over the amount act-
ually (iue, and then proceeded to ascertain from evidence
what the amount actually due was. So it is the same, in legal
effect, as if he had proceeded to enter judgment upon the war-
rant of attorney, itself, without any cognovit at all. The war-
rant of attorney is one thing, and the cognovit quite another;
both were indispensable to the authority of the clerk to enter
judgment. He must look to the cognovit alone for the
amount, and has no capacity to determine it from evidence,
which he must have done in this case. It is unnecessary, per-
haps, to observe that, if the judgment had been entered in
court at a term, very different consequences would attach ;
but the proceeding having been in vacation, conducted under
a special statutory authority by a mere ministerial officer, we
must hold that the entry of this judgment in the manner sta-
ted was simply void.
If the judgment and execution were void, it follows, of
course, that neither McCune, the plaintiff in the execution,
nor the sheriff, had any lawful authority to exercise control
over the chattels in question, or to question the sufficiency of
their delivery to appellants under the contract of purchase
between them and Wood, the supposed judgment debtor. The
sale was good as between the parties, and the contract gave
them the right of possession.
16— 6 1st III.
242 Sullivan v. City of Oneida. [Sept. T.;
Syllabus.
It is the opinion of a majority of the court that the judg-
ment of the court below should be reversed and the cause re-
manded.
Judgment reversed.
Daniel Sullivan
v.
The City of Oneida.
1. City charter — ordinances — liquor nuisance. Where a city charter
authorized the common council to declare the selling, giving away, or the
keeping on hand for sale any spirituous or intoxicating liquors, etc., in the
cit}r, a nuisance, it does not authorize an ordinance making it an offense for
any person within the city to have in his or her possession any intoxica-
ting liquors, etc. The ordinance exceeds the power in the charter as it
declares the possession, without the intent to sell, an offense.
2. The charter only contemplates a search in the event that liquors
were in the possession of some person for sale within the city. The ordi-
nance authorizes the search and seizure if the liquors were kept in the
city, whether the intention was to sell them or ship them for sale else-
where. Such an ordinance might interfere with general commerce, but
when confined to the ordinary traffic between the city and its neighboring
towns and cities, it is unjust and illegal, and the ordinance is ultra vires and
void.
3. City ordinances — presumption of innocence. It is no answer to say
that the person whose liquor is seized may prove his innocence — may
show the purpose to be lawful. The law ought not to be guilty of such
harshness as to require a man to prove his innocence where there is not
even a suspicion of his guilt.
4. Legislative power — to restrain sale of spirits. It has often been
decided that the general assembly may prohibit the retail of intoxicating
liquors. But this charter has gone far beyond that, as it authorizes the
council to license, regulate and tax the sale of such liquors; to declare the
sale, and keeping on hand for sale, a nuisance ; to provide for its summary
abatement and suppression ; and it empowers the police magistrate to is-
sue his warrant to search the premises of persons suspected of selling. It
makes the mere possession prima facie evidence of unlawful intent, and
without satisfactory explanation, evidence of sale and keeping on hand for
Bale.
1871.] Sullivan v. City of Oneida. 243
Syllabus.
5. City ordinance. The ordinance authorizes the police magistrate,
on complaint that any person has such liquor for sale, more than one gal-
lon, to issue his warrant for the search of his dwelling house, and if liquors
are found they shall be seized, and the person arrested, and both brought
before the magistrate, who shall at once proceed to try the person, and if
lie should not offer a satisfactory explanation and show that he had the
liquors for a lawful purpose, he shall be fined, and ordered to the common
jail until fine and costs are paid, and the liquors ordered sold on execu-
tion and the proceeds applied to the payment of the fine and costs.
6. The ordinance is objectionable because, while it professes to prevent
the sale of liquors because the}' are declared to be a nuisance and should
be abated, it requires the liquors to be sold by the officer.
7. Same — objectionable. Another objection is, that both the charter and
ordinance authorize the seizure of all liquors found, without reference to
quantity; whilst the ordinance only authorizes a fine of $100, it authorizes
a seizure of liquors to the value, it may be, of thousands of dollars, which
■would be ordered to be sold, as is supposed, to satisfy the fine, as it will
not be presumed the sale would be ordered merel}' for the exercise of un-
usual or arbitrary power. Again, the ordinance does not require the sur-
plus to be returned to the owner.
8. Justice of the peace—; jurisdiction. Whilst a justice of the peace
could only render a fine not exceeding $100, yet, under this charter and
ordinance, he is authorized to adjudicate to an unlimited amount of prop-
erty, and this seizure is unreasonable and in violation of the Declaration
of Rights.
9. Constitutional protection. Every man has the right to acquire
and protect his property; to be secure against unreasonable searches and
seizures; to a fair trial before he can be deprived of life, liberty or prop-
erty; and in all criminal prosecutions the right to be heard> to demand
the nature and cause of the accusation against him, and to meet witnesses
face to face. Under this ordinance a person ma}' be deprived of his prop-
erty without notice; condemned without witnesses; his premises sub-
jected to unreasonable search, and his property seized to an unlimited
amount.
10. Property. Spirituous liquors, ale or beer, are property; the}- are
chattels; are articles of consumption and of commerce; and the ordinance
recognizes them as property and directs their sale, and permits druggists to
keep them. Their abuse may be restrained and punishment inflicted on
those who sell them to the injury of others. As ay ell as other chattels,
they may come under the designation of a nuisance, and to a certain ex-
tent lose their quality of property, but they can not do so per se.
11. Legislative power — its exercise. The legislature may change the
presumptions of guilt; it may, to a certain extent, declare acts evidence
244 Sullivan v. City of Oneida. [Sept. T.,
Opinion of the Court.
Of an unlawful intent which had before been innocent; it may declare pos-
session of property, on account of its dangerous character, unlawful, but
such laws must always have proper safeguards for the security of pri-
vate rights.
12. It is within the power of the legislature to declare the possession
of spirituous liquors, for the purpose of sale, a quasi nuisance, and to pro-
vide a well guarded system of suppression of its use; and that possession
shall be prima facie evidence of unlawful intent. But in making such
changes the utmost care should be observed so as to preserve the sa-
credncss of the domicil.
Appeal from the Circuit Court of Knox county; the Hon.
Arthur A. Smith, Judge, presiding.
Messrs. Craig & Harvey, for the appellant.
Messrs. Willoughby & Grant, for the appellee.
Mr. Justice Thornton delivered the opinion of the Court:
We propose only to consider the character and validity of
the section of the charter, and the ordinances read in evi-
dence.
The warrant issued commanded the officer to search the
dwelling and out-houses of the accused, and if spirituous
liquors were found to seize the same and bring them before
the magistrate.
The ordinance greatly transcends the power granted to the
council.
The charter empowered the council to declare the selling,
giving away, or the keeping on hand for sale, of any spirituous
or intoxicating liquors, ale, beer, or any kind of fermented
liquors icithin the city, a nuisance.
The necessary import and plain construction is, that the
liquors must be kept to sell within the city. It could never
have been intended to prohibit the possession of liquors with-
in the city, designed for sale elsewhere.
The corresponding sections of the ordinance are:
"Sec. 3. If any person shall, Avithin the city, keep on hand
for sale, any spirituous liquors," etc.
1871.] Sullivan v. City of Oneida. 245
Opinion of the Court.
"See. 4. Whenever complaint, on oath, shall be made be-
fore the police magistrate that any person within the city has,
in his, her or their possession, any intoxicating liquors," etc.
It will be seen at a glance that the ordinance exceeds the
power conferred. Possession within the city, without any
intention of selling therein, is made the offense.
There is as great a divergence between the charter and
ordinance in regard to the search warrant.
The charter only contemplated a search in the event that
liquors were in the possession of some person, for sale within
the city.
The ordinance plainly authorized the search and seizure if
the liquors were kept in the city, whether the intention was to
sell them, or ship them and sell elsewhere.
The commission man might have, upon storage, the liquors
of his correspondent, for shipment to Chicago or St. Louis,
and for sale there, and yet his business house is not secure
from an unreasonable search or the property from unreason-
able seizure and, it may be, confiscation. If the city of
Oneida was of sufficient importance to make it a place of de-
posit for large quantities of liquors intended for shipment to
other States and territories, though imported and in the orig-
inal packages, the ordinance would interfere with commerce
between the States, and it might be with foreign commerce.
But confine the operation of the ordinance to the ordinary
traffic between Oneida and its neighboring towns and cities,
and it is unjust and illegal.
It is apparent that the ordinance is ultra vires and void.
It may be said that, in the cases supposed, the party in pos-
session may prove his innocence — may show the purpose to be
lawful. The law ought not to be guilty of such harshness and
absurdity as to require a man to prove his innocence when
there is not even the suspicion of guilt. The mere kindness
and courtesy of giving a glass of wine to a friend may consti-
tute a nuisance and be visited with severe punishment.
2 16 SuLLrvAN v. City of Oneida. [Sept. T.,
Opinion of the Court.
That the legislature may prohibit the retail of intoxicating
liquors has been often decided by this court; but this charter
has taken a long step in advance of all previous legislation.
It empowers the council to license, regulate and tax the sale
of spirituous liquors; to declare the sale, and the keeping on
hand for sale, a nuisance ; to provide for its summary abate-
ment and suppression ; and it confers the power upon the
police magistrate to issue warrants commanding the search of
the premises of persons suspected of selling. Then it makes
the mere possession prima facie evidence of unlawful intent;
and, without satisfactory explanation, sufficient evidence of a
sale and of keeping on hand for sale.
By the ordinance, the possession for sale may be adjudged
a nuisance, and upon complaint that any person has in his
possession, for the purpose of sale, intoxicating liquors ex-
ceeding in quantity one gallon, a warrant shall issue for the
search of his dwelling house, and if the liquors are found they
shall be seized and the person arrested, and both shall be
brought before the magistrate, who shall immediately proceed
to try the person, and if he should not offer to the justice a
satisfactory explanation and show that he had the liquors for a
lawful purpose, he shall be found guilty of a nuisance and fined,
and ordered to the common jail until the fine and costs are
paid ; and the liquors seized shall be ordered to be sold on
execution as other property, and the proceeds shall be applied
to the payment of the fine and costs.
One remarkable feature of the ordinance is, that while
seemingly intended for the abatement of a designated nuis-
ance, it really maintains it. Blackstone says, a nuisance is
anything that worketh hurt or damage. The nuisance aimed
at in this instance must be termed of a public character as
affecting public morals. It must have been regarded as nox-
ious and injurious to the public welfare. Yet the council,
while bitterly denouncing the offensive thing upon paper,
made no provision for its destruction, as a due regard to the
public morals required. On the contrary, the liquors are
1871.] Sullivan v. City of Oneida. 247
Opinion of the Court.
recognized as property ; a sale of them may be ordered ; a
transfer is made to the possession of another ; and then a new
search will probably begin ; or, will the sale change the na-
ture of the liquors and expurgate their hurtful qualities? It
would seem to an ordinary mind that, if the article is so great
a nuisance as to require such summary proceedings for its
suppression, the sale of it by the officer should likewise be con-
sidered a nuisance which ought to be suppressed.
Another serious objection to both charter and ordinance is,
that they direct the seizure of all the liquors which may be
found, and that all shall be sold. There is no limitation up-
on the action of the officers or of the exercise of the right of
seizure. The fine can not exceed $100, yet liquors may be
seized of the value of thousands of dollars. In this case,
liquors of the value of $500 were taken. The judgment ren-
dered was in personam for $50, yet property, ten times the
amount, might be ordered to be sold for its satisfaction. The
only cause for the sale must be for the satisfaction of the judg-
ment, for we can not suppose that a sale would be ordered
merely for the exercise of unusual and arbitrary power.
Who appropriates the surplus after the payment of the
judgment? In justice it should be returned to the owner,
but it is not so provided.
The constitution of 1848 prohibited justices of the peace
from trying any person punishable by fine above $100.
Though the accused in this case could not be fined in an
amount exceeding $100, yet he might virtually be punished
by deprivation of his property to the extent of $500.
Thus an inferior officer, limited in jurisdiction and in
knowledge of the law, is authorized to adjudicate in reference
to an unlimited amount of property. The seizure of the prop-
erty permitted is unreason-able, and in violation of the Dec-
laration of Rights.
A frequent recurrence to certain fundamental principles is
essential to the preservation of good government, and to the
security of the liberty and personal rights of the citizen.
248 Sullivan v. City of Oneida. [Sept. T.,
Opinion of the Court.
Every man has the right to acquire and protect his prop-
erty ; to be secure against unreasonable searches and seizures;
to a fair trial according to the course of the common law, be-
fore he can be deprived of life, liberty or property; and in all
criminal prosecutions the right to be heard, to demand the
nature and cause of the accusation against him, and to meet
the witnesses face to face.
By the system of measures devised by the charter and ordi-
nance, the citizen may be deprived of property without notice;
condemned without witnesses; his premises subjected to an
unreasonable search, and his property, to an unlimited amount,
seized.
Spirituous liquors, ale and beer, are property, as much so as
money or lands. They are chattels ; are articles of consump-
tion and of commerce. The ordinance recognizes them as
property and directs their sale on execution, and permits
druggists to keep them. Their abuse may be restrained, and
punishment inflicted upon those who sell them to the injury
of others. They may, as well as other chattels, come under
the designation of nuisance, and, to a certain extent, lose their
quality as property; but they can not, per se, lose their qual-
ity as property.
The charter permits their seizure without any notice to the
owner. The ordinance is but a slight, if any, improvement.
It authorizes the seizure of the liquors and the arrest of the
person. But if he is not found, no notice, actual or construc-
tive, is provided for.
If the person be arrested, upon the trial — if it deserve the
name — the prosecution need prove nothing ; need not pro-
duce any witnesses to undergo the ordeal of cross-examina-
tion. The complaint under oath, and the exhibition of the
liquors in court, make out a prima facie case. The accused
must then submit, or prove that he kept the liquors for a law-
ful purpose. His guilt is a presumption of law unless he
proves his innocence. The ex parte proceedings of the officers
condemn him unless he can make a satisfactory explanation.
1871.] Sullivan v. City of Oneida. 249
Opinion of the Court.
Thus the rule is reversed, that no man can be required to
explain until sufficient proof is offered to warrant a just and
reasonable conclusion against him.
It is no excuse that there was a trial in this case. This
only proves that the prosecution was more tolerant than it
might have been. We must look at the stringency of the
law. A bad law is none the better because it is not rigidly
enforced.
The last clause of section 22 of the charter is still more
obnoxious ; not on account of a change in the rules of evi-
dence, but for other reasons.
The legislature may change the law and increase the pre-
sumptions of guilt. It may, to a certain extent, make acts
evidence of an unlawful intent which had before been inno-
cent. It may declare the possession of certain articles of prop-
erty, on account of their highly dangerous character, unlaw-
ful. But such laws must always have proper safeguards for
the security of private rights.
To lessen and prevent the evils of intemperance and the
innumerable ills flowing therefrom, it is within the power of
the legislature to declare the possession of intoxicating li-
quors, for the purpose of sale, as quasi a nuisance, and provide
a well guarded system for the suppression of their use, and to
enact that such possession shall be prima facie evidence of
unlawful intent.
However we may regret the modification or abandonment
of the wise principles of the common law which have, for ages
past, afforded ample protection to life, liberty and property,
the propriety of such action must be left to legislative wisdom
and discretion.
But in making such changes, the utmost care should be
observed so as to preserve Jhe sacredness of the domicil.
There can be no justification for the search which is author-
ized by the charter. Possession is declared to be evidence of
unlawful intent; hence, the possession is unlawful. Unlaw-
ful possession justifies the search and seizure; therefore the
250 Parker i\ Garrison et al. [Sept. T.,
Syllabus.
mere possession justifies the search. Without actual sale —
without the overt act — without even intent, in fact, to violate
the law — the sanctity of the domestic circle is violated by an
odious search.
For cause so trivial the privacy of the citizen can not be
invaded and his house ransacked from cellar to garret. If this
can be done, the rampart which the constitution has built up
to secure the hearthstone from rude intrusion, is an effectual
defense no longer. The search provided for is odious and
unreasonable, and in conflict with the Declaration of Rights.
The judgment must be reversed and the cause remanded.
Judgment reversed.
John T. Parker
«
V.
Lewis Garrison et al.
1. Specific performance — when enforced. Courts of equity will, as a
general rule, iu all proper cases, enforce contracts relating to the sale of
lauds, but not in regard to sales of personal chattels. But there are excep-
tions to, or limitations of, the rule, as cases may arise where a contract for
the sale of chattels will be enforced.
2. Purchase of land — release of contract. Where a party purchased a
tract of land of another, and being unable to make payments prevailed up-
on his vendor to release him from the purchase and to agree to treat him
as a tenant for the year he occupied the premises, and to receive, in corn,
one-half of the grain raised on the premises during the year, for the rent,
which was to be delivered at a specified place, but the purchaser refused
to perform his contract and fraudulently placed a part of the corn in the
hands of other persons, and was insolvent : Held, as the owner of the land
was justly and equitably the owner of the corn, and as the purchaser had
been fully paid for it, and was insolvent, there was not an adequate rem-
edy at law, and equity should afford relief by enjoining its sale by those
having the possession.
3. Replevin. In such a case, as no delivery of the corn had been
made, it is doubtful whether it could have been recovered by writ of re-'
plevin, especially as a part of it was not separated from other corn with
1871.] Parker v. Garrison et al. 251
Statement of the case.
which it was stored, and in the hands of the persons with whom it, had
been placed and apart in the possession of the purchaser of the land; and
if such a recovery could have been had, it would have required several
suits, and there being no plain and adequate remedy at law, relief was
granted.
4. Trust property — will be controlled by a court of equity. Where the
contract is so far completed that, the vendor has been paid in fuil and has
no claim upon the property arising from the contract, and it only remains
to deliver possession of the property to the purchaser, it seems the vendor,
in equity, is atrust.ee of the property for the benefit of the purchaser, and
equity might take jurisdiction.
Appeal from the Circuit Court of Kankakee county; the
Hon. Charles H. Wood, Judge, presiding.
The bill alleges that John T. Parker, about the first of
February, 1870, agreed to sell a tract of land to Lewis Garri-
son for $4620, to be paid in installments, with interest ; that
nothing was paid on the purchase, but Garrison went into
possession of the land and occupied and raised a crop of corn,
etc., thereon ; that, having failed, and being unable to pay the
first installment falling due, Garrison prevailed on Parker to
release him from the purchase, with the agreement that Par-
ker should treat him as a tenant, and receive from him, for the
use of the land during the year 1870, one-half of the crops
raised on the land that year, but all to be paid in corn ; that
Garrison raised on the premises three thousand bushels of
corn and four hundred bushels of oats, ; that Garrison had
hauled to Manteno and delivered to Adam Sockie, Leon
Euzier and Gardiner P. Comstock, about six hundred bushels
of the corn, and stored the same in his own name, and was
hauling the remainder to them- to be stored in the same man-
ner ; that Sockie, Euzier & Co. refused to let Parker have the
corn or to pay him for the same, and that Garrison is insolv-
ent, and intended to defraud complainant out of his rent. The
bill makes them all defendants, and prays that Sockie, Euzier
& Co. be restrained from delivering the grain to, or paying
Garrison therefor, and that he be restrained from selling,
mortgaging, pledging, etc., the grain.
252 Parker v. Garrison et al. [Sept. T.,
Opinion of the Court.
To this bill a demurrer was filed, which the court sustained
and dismissed the bill, and complainant appeals to this court.
Mr. Tho. P. Bonfield and Mr. W. S. Decker, for the
appellant.
Mr. William Potter, for the appellees.
Mr. Justice Sheldon delivered the opinion of the Court :
The question presented by the record in this case is, whether
chancery will entertain jurisdiction of a bill for injunction in
the nature of a specific performance of an agreement respect^
ing personal chattels.
There is a distinction taken in equity, in regard to specific
performance, between contracts which relate to land and those
which relate only to personal chattels, the general rule being
that equity will give this relief in contracts of the first, but
not in those of the latter kind.
This distinction proceeds upon the ground that, in the case
of real estate, damages at law may not afford a complete rem-
edy, but that in the case of personal property a compensation in
damages furnishes an adequate remedy.
But this general rule, not to entertain jurisdiction in equity
to enforce contracts in relation to personalty, is subject to
exceptions, or rather, as Judge Story says in his Commenta-
ries, is limited to cases where a compensation in damages fur-
nishes a complete and satisfactory remedy. 2 Story Eq. Ju.
sec. 718.
As shown by the bill, complainant has an interest in the
corn which is the subject of this suit. It justly and equitably
belongs to him. The defendant Garrison had received from
him the entire consideration for it in being released from his
contract of purchase, and in having enjoyed the use and pos-
session of the land purchased, during the year 1870, and it was
his plain duty to deliver the corn to the complainant at Man-
teno ; but in violation of his duty, and in fraud of the com-
plainant's rights, he was about disposing of, and appropriating
1871.] Parker v. Garrison et at. 253
Opinion of the Court.
to bis own use, the property, so that it would be placed be-
yond the reach of the complainant.
What had the complainant in the way of any adequate rem-
edv at law? Garrison was insolvent. Any recovery of dam-
ages against him would have been worse than bootless, as it
Mould only have entailed upon the complainant an additional
loss in the form of a bill of costs. And although this view
of the personal responsibility of a defendant seldom seems to
enter into the consideration of courts of equity, they taking it
for granted that what a party is bound by law to do, he can
do and will do, this consideration of personal responsibility is
not always disregarded.
In a suit for the transfer of stock according to a contract of
sale, where performance was decreed, it was given as a reason
that a court of law could not give the property, but could
only give a remedy in damages, the beneficial effect of which
must depend upon the personal responsibility of the party.
Dolout v. Rothschild, 1 Sim. & Stu. 590.
The remedy by replevin, at least, would have been doubt-
ful and uncertain from the difficulty of showing a legal title in
the specific property, there having been no delivery, and the
corn agreed to be delivered having been, at the time of the
agreement, an undivided portion of a larger quantity of corn.
It would have involved, too, the necessity of several suits, as
apart of the property was in the possession of Sockie, Euzier
& Co., and a portion still remained in the hands of Garrison.
The complainant's fit remedy was, to have restrained any
further disposition of the property, and to have Sockie, Euzier
& Co. restrained from paying over to Garrison the proceeds
of what had been disposed of, and this, only a court of equity
could give.
It was said, in the case o/ Clark v. Flint, 22 Pick. 231, be-
ing a bill in equity for the specific performance of a contract
relating to personal property, "If the party injured by a
breach of a contract can not avail himself of his remedy at
law for any beneficial purpose, or if it be doubtful whether he
254 Parker v. Garrison et al. [Sept. Tjj
Opinion of the Court.
can or not, a court of equity, if it can relieve him, ought cer-
tainly to interpose and compel the other party to perform his
contract."
We are of opinion that the bill makes a case for the inter-
ference of a court of equity, upon the fundamental rule of
equity jurisdiction that there is not a plain, adequate and
complete remedy at law. 2 Story Eq. Ju. sees. 718, 708, 89,
721 ; Clark v. Flint, supra; Mechanics' Bank of Alexandria v.
Seaton, 1 Pet. 299; Osborn v. TJie Bank of the United States, 9
AVheat. 738 ; Wood v. Rowcliff, 3 Hare R. 303 ; Adderley v.
Dixon, 1 Sim. & Stu. 608 ; Sidlivan v. luck, 1 Md. Ch. Dec.
59.
It would seem, too, that jurisdiction might be exercised here
on the ground of executing a trust. With respect to a per-
sonal chattel, equity will enforce a trust concerning it, but not
a contract.
The mere contract for the sale and delivery of a chattel can
not, as would a contract of sale in the case of land, create a
trust.
But it has been held that, if the contract in regard to per-
sonalty be complete so far as the vendor is concerned, if he
has been paid all that he was entitled to and has no claim
upon the property arising from the contract, and the contract
only remains unperformed to the extent that the property has
not been delivered to the purchaser, then the vendor would
become a mere trustee of the property for the benefit of the
purchaser. Pooley v. Rudd, 14 Beav. 34 (7Eng. L. & E. 229).
The bill seems to present such a case.
The cases cited by appellee's counsel, of Greemcay et ah v.
Thomas, 14111.271 , Bigelowv. Andress, 31 111.322, and jVcCoii-
nel v. Dickson, 43 111. 99, to the effect that, as a general rule, a
creditor must first reduce his debt to a judgment before he can
resort to a court of equity for aid in its collection, do not ap-
ply, as this bill is not filed in behalf of a creditor merely, but
in behalf of one who has an interest in the property involved
which is being endangered.
1871.] The People v. Palmer. 255
Syllabus. Statement of the case.
The court below should have overruled instead of sustain-
ing the demurrer to the bill.
The decree is reversed, and the cause remanded for further
proceedings in conformity with this opinion.
Decree reversed.
The People of the State of Illinois
v.
Ezekiel H. Palmer.
1. Attorney at law — misconduct in office. This court is not consti-
tuted a censor of morals, so as to require it to pronounce upon the style of
manners and conversation which becomes a member of the bar.
2. But this court has the power, under the statute, at discretion, to
strike the name of any attorney or counselor at law from the roll, for mal-
conduct in office.
3. The statute further makes it the duty of the court, whenever it shall
be made to appear that any attorney has neglected, upon demand and ten-
der of reasonable fees, to pay over or deliver money or property to his
client, to direct that the name of such attorney shall be stricken from the
roll of attorneys.
4. Same — at whose instance tJie name of an attorney may be stricken from
tJie roll. Tli£ statute which authorizes "any person interested" to apply
for a rule upon an attorney who has failed to pay over money collected, to
show cause why his name should not be stricken from the roll, should not
receive the narrow construction, that the person who may make the appli-
cation must be a creditor. The members of the profession, and other per-
sons besides creditors, have a deep interest in the purity of those who sus-
tain such important relations to the public.
This was a proceeding to strike the name of an attorney
from the roll, for mal-cond;act in office.
Mr. Rowell, State's Attorney, and Messrs. Kelly, Ful-
ler & Moore, for the people.
Mr. T. Lyle Dickey, for the respondent.
256 The People v. Palmer. [Sept. T.,
Opinion of the Court.
Per Curiam : This is a motion to strike the name of the
respondent from the roll of attorneys.
In a certain contingency, the discharge of the duty required
is painful and disagreeable, but as it is imposed by the statute,
we can not shrink from its performance.
Charges have been made and proofs submitted as to un-
gentlemanly conduct and language, on the part of the respond-
ent, to and in the presence of the judge upon the circuit, and
towards other members of the profession. However unbe-
coming such conduct and language may be, on the part of the
true gentleman, we shall not animadvert upon them.
This court is not constituted a censor of morals, so as to re-
quire it to pronounce upon the style of manners and conversa-
tion which becomes an honorable member of the legal pro-
fession. This would be an unwarranted extension of its pow-
ers. The circuit and the inferior courts have ample authority
to protect themselves, their officers and suitors, and members
of the profession must guard themselves from insults of the
character alleged.
There are, however, charges against the respondent which
we can not pass by so slightly. A brief resume of the facts
will be necessary.
The respondent, as an attorney at law, had entrusted to him,
for collection, notes, secured partly by mortgages, of the amount
of about $4000, by one McAboy. He kept possession of them
for some five years, and paid some money to his client. There
were occasional interviews between the parties, and several
attempts at a settlement.
At one time McAboy was sick, and sent for Palmer. He
then acknowledged that he was indebted to his client, and
promised to bring his books and settle. McAboy not only
desired the payment of the money due, but a return of the
notes.
Another effort was made to arrange matters, when the
parties were together, but Palmer suddenly terminated the
1871.] The People v. Palmer. 257
Opinion of the Court.
interview with the excuse that he must go to his farm, and
remarked that they would settle at some subsequent time.
Two or three demands were made for a settlement, and after
long delay arid much trouble, the notes and mortgages were
returned to McAboy, but no money was paid to him.
The fees due to the attorney had been paid before the money
was demanded, but McAboy was forced into court, to obtain
it. Upon the first trial, McAboy recovered against the re-
spondent $235. By agreement of the parties, a second trial
was had, and resulted in a judgment in favor of McAboy for
$870, which was affirmed in this court. Though there might
be an honest difference as to the indebtedness to McAboy,
other moneys were collected about which the same difference
could not exist.
The respondent, as attorney, also received, in 1863, from
one Forhner, of Missouri, notes for collection. He collected
some money and retained the notes until in 1871, when they
were demanded by Moose & Warner, attorneys, by authority
of forhner. They exhibited a letter from Forhner, directing
a surrender of the notes to them, and also the payment of any
money in his hands. Palmer acknowledged that he had the
notes, as well as a balance of money, after the payment of all
fees, but declined to give up the notes or pay over the money,
as he did not know that the signature to the letter was the
genuine signature of Forhner, and requested Warner, the
member of the firm who had made the demand, to call again.
At the second interview, he agreed to pay over the money
and surrender the notes, and Warner wrote and offered to him
a receipt for the money admitted to be due, and the notes
which Palmer proposed to give up. After reading the receipt,
he refused to carry out his own proposal, and insisted upon a
receipt in full of all demands.. Warner declined to give such
an one, and the interview ended, and suit had to be instituted
against the respondent.
Palmer also, in 1868, collected, for one Richards, $123.
Several demands were made for the money, but he retained
17— 6 1st III.
258 The People * Palmer. [Sept. T.,
Opinion of the Court.
and used it for nearly two years, and was finally sued, and then
acknowledged the indebtedness and paid it.
The excuse set up for this last transaction, by the respondent,
is, that in 1868 he purchased a draft on Chicago, from the
bank of John Warner & Co., payable to himself, for $110, in-
dorsed the same to Richards, and transmitted it to him by
mail. He, however, admits that Richards did not receive the
draft, and asserts, in his sworn statement, that he applied to
the bank where he had purchased the draft; that the officers
of the bank investigated the matter and ascertained that the
draft had not been presented to the bank in Chicago on which
it was drawn, and refunded to him the money.
John and James R. Warner, who compose the banking firm
of Warner & Co., most positively deny this statement, and
aver that, during the years of 1868 and 1869, Palmer pur-
chased of them only one draft for $110, and this was drawn
on a bank in Chicago, payable to Palmer, and indorsed by him
to John Warrenburg, and was paid and returned to them in
the due course of business. They further state that Palmer
never applied to them to refund the amount of this draft, or
of any lost or unpaid draft, and that no drafts can be drawn
by the firm, but by one of them.
The evidence is conclusive, that the respondent has collected
money for his clients, and has refused and neglected, after de-
mand, to pay it to them; that he has hindered and annoyed
them in the adjustment of business entrusted to him, and com-
. pel led them into litigation to obtain their property and rights.
The doubt expressed as to the genuineness of Forhner's sig-
nature was the merest subterfuge, for he was willing to act
upon it afterwards, without further proof. The persistence in
urging the writing of a receipt in full of all demands was
unreasonable, and a designed avoidance of any adjustment.
Palmer must have known that a receipt for the notes surren-
dered and the money paid, was all that he could expect.
Indeed, it is unnecessary to comment upon the evidence.
There is no justification for the conduct of the respondent to
1871.] The People v. Palmer. 259
Opinion of the Court.
McAboy, and Forhner and Richards. He was trusted by
them, and was bound, by the relation of confidence thus cre-
ated, to act for and towards them with good faith, strict integ-
rity and the highest honor. He should have been prompt in
the collection and the payment of the moneys. On the con-
trary, he postponed the just claims of his clients, evaded their
demands, and forced them to expense and litigation.
The statute provides that this court, at discretion, shall have
power to strike the name of any attorney or counselor at law
from the roll, for mal-conduct in office. It further makes it
the duty of the court, whenever it shall be made to appear
that any attorney has neglected, upon demand and tender of
reasonable fees, to pay over or deliver money or property to
his client, to direct that the name of such attorney shall be
stricken from the roll of attorneys of this court.
Without the latter provision, the facts proved show that
character of mal-conduct, where the relation was so confiden-
tial, as to require the exercise of the discretion given by the
statute.
The section of the statute in relation to the failure of an
attorney to pay over money collected, provides that, if an at-
torney shall refuse or neglect, after demand and tender of rea-
sonable fees, to pay over or deliver any money or property in
his hands, to his client, "or to any person authorized to re-
ceive the same, it shall be lawful for any person interested." to
apply to this court for a rule upon the attorney to show cause
why his name should not be stricken from the roll.
This statute can not receive the narrow construction, that
the person who may make the application must be a creditor.
This would be against both its spirit and equity. The mem-
bers of the profession, and other persons besides creditors, have
a deep interest in the purityyof those who sustain such import-
ant relations to the public. Besides, in motions of this char-
acter there is no individual party. The information is pre-
sented in the name and in behalf of the people, and in this
case the State's attorney initiated the proceeding.
260 Brown v. Devine. [Sept. T.,
Syllabus.
This court is responsible, to some extent, for the honesty and
capacity of those who shall minister at the altars of justice.
We must grant the license to practice, and in a proper case, it
is our duty to disbar.
In the light of that responsibility, it is incumbent upon us,
from the record presented, to declare that Ezekiel H. Palmer
is unworthy of the license which he holds, and the confidence
thereby created.
It is the opinion of a majority of the court, and is therefore
ordered, that his name be stricken from the roll of attorneys.
Scott, J. dissenting. Rule made absolute.
Serve ll W. Brown
V.
Francis Devine.
1. Mortgage— statute of limitations. Where the mortgagor of land
conveyed the same, and the grantee complied with all the requirements of
the limitation law of 1839, and when sued he relied upon that statute as a
bar : Held, as against the mortgagee the statute would not apply.
2. Same. This case distinguished from the case of Cook v. Norton, 43
111. 391, and 48 111. 20. In that case it was held that a purchaser from a
judgment debtor, buying after a sale on execution, and within fifteen
months, might set up and rely upon this statute, against the purchaser un-
der the execution, and that the statute began to run from the time the pur-
chaser might have obtained his sheriff's deed. In that case it was said, if
the purchaser had the right to suppose that the purchase from the debtor
was for the purpose of redeeming, he had no right to so think after the
time to redeem had expired. And in that consists the distinction between
the two cases, as in this the mortgagee has no right to suppose the purchase
was made for any other purpose than to redeem.
Appeal from the Circuit Court of DeKalb county ; the
Hon. Theodore D. Murphy, Judge, presiding.
1871.] Brown v. Devine. 261
Opinion of the Court.
Mr. S. W. Brown, for the appellant.
Mr. Charles Kellum, for the appellee.
Mr. Chief Justice Lawrence delivered the opinion of the
Court:
The question presented by this record is, whether the grantee
of a mortgagor can set up the statute of limitations of 1839 in
bar of a bill to foreclose.
It is not denied that it is a well settled rule, in other tri-
bunals, that the possession of the mortgagor, or his grantee,
is not adverse to the holder of the mortgage, and therefore
the statute of limitations does not run. It is contended, how-
ever, that a different rule must be applied here, on the author-
ity of cases already decided by this court. The only case
which can lend any color to this position is that of Cook v.
Norton, which was twice before this court, and is reported in
43 111. 391, and 48 ib. 20. We there held that a purchaser
from a judgment debtor, buying after a sale on execution, and
before the expiration of the fifteen months, might set up the
statute of limitations against the purchaser under the execu-
tion, the statute beginning to run from the time the purchaser
might have taken out the sheriff's deed.
When the case was last before the court, it was chiefly upon
this question, Avhich was then fully presented by counsel
and considered by the court. We then said, " If the pur-
chaser at the sheriff's sale had a right to suppose that the
purchaser from the judgment debtor was buying the fee merely
for the purpose of redeeming, he had no right so to think after
the time of redemption expired." This marks the precise dis-
tinction between that case^and the present. Here the right
of redemption was not gone, and the mortgagee had the right
to suppose that the purchaser from the mortgagor had bought
and was holding the title of the mortgagor with a view of re-
deeming whenever the mortgagee should demand payment.
262 Brown v. Devine. [Sept. T,,
Opinion of the Court.
In the former case, the occupant had no title to or legal
interest in the land, after his right of redemption expired, and
yet, as he claimed under a deed purporting to convey the fee,
the real holder of the fee should have known, and must be
presumed to have known, that the possession was adverse. In
this case the occupant has the title, subject merely to a lien
for the payment of a sum of money, and the owner of the lien
has a right to regard the possession as consistent with his lien,
and not adverse. Hence, in the one case there is laches, in the
other not. In the one case the owner is sleeping upon his
rights, allowing a person without title, but claiming one, to
occupy and pay taxes upon his land. In the other the holder
of security for the payment of a debt simply allows a posses-
sion to continue, which he has no reason to consider hostile,
and which is a possession under the very title upon which his
debt is secured. In the former case there had been a lien on
the one side and a right of redemption on the other, and not
until the lien had been converted into an absolute title, and
the right of redemption lost, did the statute of limitations be-
gin to run.
In the case before us the lien has not been converted into a
title, and the right of redemption has not been lost.
We think the court below did not err in holding the statute
of limitations had not barred the right to foreclose.
The decree is affirmed.
Decree affirmed.
1871.] Northern Line Packet Co. v. Shearer. 263
Syllabus. Opinion of the Court.
Northern Line Packet Co.
v.
Frederick A. Shearer.
1. Contract for shipment of goods — who to sue. Where a transpor-
tation company gave a shipping receipt for the transportation of goods from
one place to another, and they are lost, the person to whom the shipping
receipt is given may bring the action, although the property may belong
to another.
2. Evidence — competency of witness. Where the suit relates to the
wearing apparel and ornaments of the wife, and a suit is brought by the
husband to recover for their loss — as the wife was, at common law, vir-
tually the owner of such goods, and could only be divested of such own-
ership by their sale, or gift to another by the husband, she is interested in
the property in suit so as to render her a competent witness in such suit,
under the exception to the 5th section of the act relating to the compe-
tency of witnesses, which declares that, where the suit relates to the sepa-
rate property of the wife, either maj' be a witness.
Appeal from the Circuit Court of Mercer county ; the Hon.
Arthur A. Smith, Judge, presiding.
Messrs. Sweeney & Jackson, and Mr. Walter J. Pepper,
for the appellant.
Messrs. Pepper & Wilson, for the appellee.
Mr. Justice Walker delivered the opinion of the Court :
This was an action of assumpsit, brought by appellee in the
Mercer circuit court against appellant, to recover the value of
the contents of a trunk claimed to have been lost by appel-
lant. It appears the trunk,. in question, together with a quan-
tity of household property, was shipped at Muscatine, in the
State of Iowa, to New Boston, by a steamboat called "The
New Boston." The other property was delivered to, and re-
ceived by, appellee, but the trunk', with its contents, consist-
ing of women's wearing apparel, a china cup and saucer and a
picture, were never delivered. No plea being filed, a default
264 Northern Line Packet Co. v. Shearer. [Sept. T.,
Opinion of the Court.
was entered, but it was subsequently set aside, appellant
pleaded, and a trial was had by the court and a jury, resulting
in a verdict and judgment in favor of appellee. The bill of
lading was given to, and in the name of, appellee ; hence, the
suit for the loss of the property could only be brought by the
person to whom the shipping receipt was given, and appellee
was entitled to sue on the bill of lading. The contract of the
company was, to deliver the property to appellee, and failing
to do so, he can sue for and recover its value. In this respect
the suit was properly brought.
It is urged that the court below erred in permitting the
wife of appellee to testify as a witness on the trial below. But
it is insisted by appellee that, under the 5th section of the act
of 1867 (Sess. Laws, 184), she was competent. That section
declares that the husband and wife shall not, by virtue of the
1st section of the act, be competent to testify for or against
each other, etc., but the section contains a number of excep-
tions, amongst which is this: "Except, also, in cases where
the litigation shall be concerning the separate property of the
wife," in which case the statute declares they may testify for
and against each other in the same manner as other parties
may under the provisions of the act.
The evidence shows, and the fact is not contested, that the
property in controversy was the wearing apparel and chattels
of the wife of appellee. She testified that she owned the trunk
and greater portion of the goods before marriage, and had
purchased the remainder afterwards with her own means; and
it appears the parties were married something over five years
before the trial. In this case, however, it does not appear
where the parties were married. If shown to have been in
this State, then there would, under this evidence, have been
no doubt that the title to this property was vested in her un-
der our law. But they may have been married where no such
law existed. At the common law the wife retained, substan-
tially, the ownership of her apparel and ornaments suitable to
her rank and condition in life. She was entitled to these at
1871.] Northern Line Packet Co. v. Shearer. 265
Opinion of the Court.
the death of her husband, over and above her dower, and in
preference to all other representatives. Neither could the
husband devise, by his will,, such ornaments and jewels of his
wife. Blackstone says, "though, during his life, perhaps he
hath the power, and if unkindly inclined to exert it, he might
sell or give them away; but if she continues in use of them
till his death, she shall afterwards retain them against his
executors and administrators, and all other persons except
creditors, where there is a deficiency of assets. " Blk. Com.
vol. 2. p. 436. Thus it is seen, by the common law, that her
personal apparel and ornaments substantially belonged to, and
the beneficial interest therein was vested in her, until de-
prived of it by a sale or gift by the husband, or subjected to
payment of his debts on a failure of other assets. If, then,
such was the common law, we must hold that, in this case, the
wife was virtually the owner until divested by the husband
exerting his power of selling or giving away this property, or
it being subjected to the payment of his debts. She, then,
was the owner within the meaning of the statute, and was
thereby a competent witness.
It is next urged that the evidence fails to support the ver-
dict. There can be no question, had appellant introduced no
evidence there would have been a clear case in favor of ap-
pellee. And although the testimony of appellant may have
had the effect of producing doubts, still the jury were war-
ranted in finding for appellee, and the judgment of the court
below must be affirmed.
Judgment affirmed.
'/
266 Reed v. Hastings. [Sept. T.,
Syllabus. Opinion of the Court.
Robert Reed
v.
Hiram Hastings.
1. Warranty — what constitutes. While no particular form of words is
necessary to constitute a warranty, yet there is a distinction as to the le-
gal effect of expressions when used in reference to a matter of fact, and
when used to express an opinion. When the representation is positive
and relates to a matter of fact, if relied on by the purchaser and it induced
the purchase, it constitutes a warranty ; but when the representation re-
lates to that which is a matter of opinion or fancy, as the value of a horse
or other article of property, it does not amount to a warranty unless there
are other declarations which leave no doubt of the intention to warrant.
2. The intention wTith which the representation is made is to be deter-
mined by the character of the representation made, and the object to be
effected by it.
Appeal from the Circuit Court of! Lake county ; the Hon.
E. S. Williams, Judge, presiding.
Messrs. Story & King, for the appellant.
Mr. Sidney Smith, for the appellee.
Mr. Justice Breese delivered the opinion of the Court :
This was an action of assumpsit on a promissory note, with
the common counts. The note was given for a flock of sheep,
and the defense was, that the plaintiff represented to the de-
fendant that the ewes, of which there were more than three
hundred in the flock, had not been with the bucks — not more
than a dozen of them — and that not more than that number
were with lamb. The case turns upon this point. The testi-
mony was conflicting, and it was a fair question for the jury
whether the representations made were a warranty or a mere
expression of opinion. This court has said that no particular
form of words is necessary to constitute a warranty, but there
was a distinction as to the legal effect of expressions when used
1871.] Reed v. Hastings. 267
Opinion of the Court.
in reference to a matter of fact, and when used to express an
opinion. When the representation is positive and relates to
a matter of fact, it constitutes a warranty, but where the rep-
resentation relates to that which is a matter of opinion or
fancy, as the value of a horse or other article of property, it
does not amount to a warranty unless there are other declar-
ations which leave no doubt of the intention to warrant. Tow-
ell v. Gatewood, 2 Scam. 22 ; Adams v. Johnson, 15 111. 345.
Appellant complains that this distinction was not regarded
by the court trying the cause, in giving to the jury the instruc-
tions asked by plaintiff, and we are of that opinion. We think
the third, fourth and fifth instructions for the plaintiff should
not have been given in the terms used, especially the fifth.
All of them, as given, were calculated to mislead the jury.
The jury were not told that, if the representations made by
the seller were mere expressions of opinion as to the condition
of the ewes, they would not amount to a warranty, but if they
were representations or statements of a fact that the ewes had
not been .with the bucks, and which statements were relied on
and induced the purchase, they would amount to a warranty.
It surely can not be the law that a vendor of a chattel is
permitted to make any false statements of fact in relation to
the article, which he may choose to indulge in, thereby induc-
ing the purchase, and not be accountable to the purchaser.
The fact that the ewes had not been with the bucks prior to
the sale, was an important fact to the purchaser, and when
deliberately asserted it amounts to a warranty, if made with a
view of assuring the buyer of the truth of the fact asserted,
and to induce him to make the purchase if the affirmation is
so received and relied on b/tiie purchaser. Hawkins v. Berry,
5 Gilm. 39 ; Ender v. Scott, 11 111. 35. There is nothing in
the case of Wheeler v. Reed et at. 36 ib. 81, in conflict with
what is here said. There the question was, as to the quality
of the flour sold, and the jury were told that it was not necessary
the word "warrant" should be used in order to make a warranty
of the quality of the article sold, yet, to make any affirmation or
2GS Bowen et al. v. City of Chicago. [Sept. T.,
Syllabus.
representation of the quality amount to a warranty on the part
of the seller, it must appear to have been made at the time of
the sale with the intention of thereby warranting the quality
of the article, and not the mere expression of the seller's
opinion. In that case, there was an assertion of the quality
of the flour; here, it is claimed, was a positive affirmation of
an important fact that should have been in the knowledge
of the seller. The intention with which the representation is
made is to be determined by the character of the representa-
tion made, and the object to be effected by it.
For the reasons given, the judgment is reversed and the
cause remanded.
Judgment reversed.
Elias B. Bowen et al.
v.
The City of Chicago.
1. Void assessment. An assessment based upon a former original
assessment which was void, is itself void.
2. All the points in this ease, decided in Foss v. City of Chicago, 56 111.
354. Also, see Workman v. City of Chicago, and Union Building Association
v. City of Chicago, post 463, 439. Those cases control this.
Appeal from the Superior Court of Cook county; the Hon.
Joseph E. Gary, Judge, presiding.
Messrs. Barker & Waite, and Mr. William Hopkins,
for the appellant.
Mr. M. F. Tuley, for the appellee.
1871.] Bowen et al. v. City of Chicago. 209
Opinion of the Court.
Mr. Justice McAllister delivered the opinion of the
Court:
This is an appeal from thejudgment of the Superior Court
of Cook county rendered upon a warrant for a special assess-
ment to make up the amount which the city failed to collect
of an original assessment for curbing with curb stones, filling,
grading, and paving with wooden blocks West Madison street,
from Centre avenue to Eobey street.
The points arising upon the record question the validity of
this second assessment.
Under proper objections to the application for judgment,
the counsel for appellants introduced in evidence a certified
copy of the entire record in both the original and new pro-
ceedings, from which it appears that the original proceedings
from the first initiative step of the board of public works down
to the order of confirmation were illegal and void upon the
same grounds as in the case of Foss v. City of Chicago, 56 111.
354.
In the second assessment proceedings, which are more di-
rectly involved in this case, the original are treated as if valid.
That is to say, although the statement to the council of the
estimate of cost and expense is contained only in a report in-
viting an authority which the council could not legally give
to the board, and which was therefore void, still, that estimate
so reported is taken as the basis for the deficiency to be lev-
ied by the second proceedings, and is the only estimate ever
stated to the council by the board.
The statute of 1867, amendatory of the city charter, makes
it indispensable to a valid ordinance that the council should
first obtain an estimate of the cost and expense of the im-
provement. None has ever been obtained but a void one.
The same statute makes it indispensable to a valid assessment
that the common council shall, in the order directing the do-
ing of the work or making the improvement, specify what
amount of the estimated expense shall be assessed upon the
270 Bow en et at. v. City of Chicago. [Sept. T.,
Opinion of the Court.
property deemed specially benefited, and what amount shall
be chargeable to the general fund.
The only order or ordinance in either the original or second
proceeding, purporting to specify such amounts, is the origi-
nal ordinance, which was, from the beginning, null and void.
It is true, that the commissioners, in their report recommend-
ing the second assessment, give it as their opinion that the
amounts specified in the original ordinance were fair and
proper proportions of the original estimate to be assessed up-
on property benefited, and chargeable to the general fund.
But the ordinance which accompanied their report and was
passed by the council, is wholly silent in that respect, so that
we find the opinion of the board of public works substituted,
without any statutory authority, to the place of amounts ex-
pressly required by the statute to be specified by the order of
the common council.
The 36th section of chapter 7 of city charter, (Gary's Laws
75), under which the new proceedings are claimed to be au-
thorized, expressly requires the new assessment to be made as
nearly as may be in the same manner as is prescribed for the
first assessment. Under a proper objection to the judgment,
appellants' counsel offered in evidence the contract under
which the work was alleged to have been done, and offered to
prove the fact of its completion, and that it actually cost some
§25,000 less than the original estimate upon the basis of which
the new assessment was made. But upon objection of the cor-
poration counsel the court excluded the evidence and gave
judgment against the different parcels of land returned as
delinquent for the same identical amount assessed upon them
in and by the original proceedings, which included $350 for
the costs of such proceedings, and irrespective of the amount
actually remaining unpaid after the work was completed.
The points arising in this case were all ruled in the cases
of Workman v. City of Chicago and Union Building Association
V. City of Chicago, post 463, 439. Those cases control this.
1871.] Phares v. Barber. 271
Syllabus.
We do not hesitate to say, from what appears in this record
of the nature and character of the second assessment, that the
judgment upon that warrant is founded in wrong and oppres-
sion, and from these and other similar cases before us, Ave feel
constrained to say that it does seem that the board of public
works of Chicago conduct their proceedings much more in the
harsh spirit of a grasping and not over-scrupulous creditor
pursuing the property of his debtor, than with that fair, im-
partial, considerate disposition which should characterize the
acts of every trustee, and especially of public trustees, admin-
istering a high and important public trust, involving the per-
formance of the very delicate duty of interfering with the
rights of private property.
We are of the opinion that the new assessment was not
made upon the proper basis ; that the court erred in exclud-
ing the evidence offered, and that the judgment should be
reversed.
Judgment reversed.
Granderson K. Phares
v.
Norris S. Barber.
1. Evidence — admissibility of. In an action on a promissory note by
the payee against the maker and his sureties, one of the issues involved
was, whether or not the sureties had been released hy an agreement be-
tween them and the payee upon a sufficient consideration. The existence
of such an agreement was positively testified to by one of the sureties and
the principal maker, and as positively denied by the payee. In rebuttal
the plaintiff introduced a witness who detailed a conversation between the
payee and the sureties in regard to an application which they intended to
make to the principal maker, to prevail upon him to secure the debt in
some other manner. It was also in evidence that the principal maker had
executed to the payee a certain mortgage. Upon cross-examination the
272 Phahes v. Baeber. [Sept. T.,
Statement of the case.
witness was asked if anything was said in that conversation about releas-
ing the sureties from the note. Objection was made to the question and
sustained by the court: Held, the question should have been answered.
2. Same — latitude of cross-examination. The objection to the question
that it was leading could not prevail, for, on cross-examination, a party
has a right to propound leading questions.
3. Neither can it be said that the refusal of the court to permit the
question to be answered excluded no fact from the jury, for it forestalled
inquiry which may have resulted in important testimony.
4. And counsel are not bound to disclose the object of questions, upon
cross-examination, when the court can easily see that they are germane to
the issue.
5. Same — conversations between parties. Besides, when a witness details
a conversation, the party against whom the evidence is offered is entitled
to the whole of the conversation.
6. Same — witness— jury. In respect to the effect of the mortgage given
by the priucipal maker of the note to the payee, on the liability of the
sureties, the former testified as follows: "My understanding was at the
time, and still is, that the mortgage was given to release the securities and
secure the payment of the note. I think Barber (the payee) understood it
in that way also : " Held, the evidence was properly excluded from the
jury. The purpose in the execution of the mortgage could only be ascer-
tained by the acts and declarations of the parties in connection with the
instrument. The object of the testimony should have been, not to obtain
the idea of the witness upon undisclosed facts, but to elicit facts to enable
the jury to form their own conclusion.
7. Same — phonographic report of testimony. A transcribed phonographic
report of the evidence of a witness given on a former trial, can not be
read for the purpose of contradicting the witness on the subsequent trial.
The legislature has not declared that such reports shall be evidence for any
purpose.
Appeal from the Circuit Court of Peoria county; the Hon.
S. D. Puterbaugh, Judge, presiding.
This was an action of assumpsit, brought by Norris S. Bar-
ber against Granderson R. Phares, Thomas J. Huffman and
"William Croka, on the following promissory note:
"On the 1st day of February, 1858, we, or either of us,
promise to pay Norris S. Barber, or bearer, of Knox county,
1871.] Phares v. Barber. 273
Statement of the case.
Illinois, the sum of $314, it being for value received, with use.
Dated Elba, Knox county, Illinois, this 30th day of January,
1857.
G. R. Phares,
Thomas Huffman,
William Croka."
The defendants, Phares and Croka, pleaded as follows :
First — Non-assumpsit.
Second — That they signed the said note sued on as securi-
ties for Thomas J. Huifman, and that said Huffman after-
wards, and before the commencement of this suit, paid the
note in personal property, viz : Two horses, set of harness, a
plow and a wagon, which were accepted by plaintiff in dis-
charge and payment of said note.
Third — That they were sureties, and that plaintiff, after the
note was due, on April 12, 1858, extended the time for the
payment of said note to the 6th day of January, 1859, for a
valuable consideration, without their knowledge and con-
sent, and took a chattel mortgage from Huffman to secure the
debt.
Fourth — That they were sureties, and after the note became
due plaintiff took other and different security from the defend-
ant Huffman, viz : a chattel mortgage on two horses, set of
harness, a wagon and a plow, with the agreement that the
taking of such other security should release defendants Phares
and Croka, from all liability on said note.
A trial by jury resulted in a verdict and judgment for the
plaintiff for $382.47, from Yvhich judgment the defendant
Phares appeals.
Mr. D. McCulloch, and Messrs. ¥ead & Jack, for the
appellant.
Messrs. Johnson & Hopkins, for the appellee.
18— 61st III.
274 Phares v. Barber. [Sept. T.,
Opinion of the Court.
Mr. Justice Thornton delivered the opinion of the Court:
Appellant and one Croka were sureties upon a note execu-
ted by them and Huffman, as principal, to appellee.
It would be alike unimportant and improper to review the
evidence, as the case must be submitted to another jury for
the error of the court below in refusing a proper question to
be answered which might have elicited competent and mate-
rial testimony.
One of the issues, and the main one, was, whether or not
the sureties had been released from their obligation to pay the
note by an agreement between them and the payee of the
note, upon a sufficient consideration.
The existence of such an agreement was positively testified
to by appellant and Huffman, and as positively denied by
appellee.
In rebuttal, appellee introduced as a witness one Ford, who
detailed a conversation between appellee and the sureties in
regard to an application which they intended to make to
Huffman, to prevail upon him to secure the debt in some
other manner.
Upon cross-examination, this witness was asked the follow-
ing question : "Was anything said in that conversation about
releasing Phares and Croka from the note?" Objection was
made to the question and sustained by the court, and excep-
tion taken.
This question should have been answered. Upon cross-
examination a party has a right to propound leading ques-
tions. The answer would necessarily have been merely affirm-
ative or negative. If affirmative, the natural and necessary
inquiry would have been, "What was said about releasing
them?"
It is said that the refusal of the court excluded no fact from
the jury. It may have had the same effect. It forestalled
inquiry which may have resulted in important testimony.
1871.] Phares v. Barber. 275
Opinion of the Court.
Counsel are not bound to disclose the object of questions
upon cross-examination when the court can easily see that
they are germane to the issue. In such case, it is not neces-
sary to propose to the court to prove any particular fact. Such
practice would destroy the power and defeat the ultimate pur-
pose of cross-examination.
It is also a well settled rule that, where a witness details a
conversation, the party against whom the evidence is offered
is entitled to the whole of the conversation, and any action of
the court which prevents its obtainment violates this rule of
law.
The question was proper, and the objection to it should have
been overruled.
It is also contended that the court erred in excluding the
testimony of Huffman as to his understanding of the effect of
a mortgage given by him to appellee. The following is the
language of the witness : "My understanding was at the time,
and still is, that this mortgage was given to release the secur-
ities and secure the payment of the note. I think Barber un-
derstood it in that way also."
The purpose in the execution of the mortgage could not be
ascertained in this manner. This could only be determined
by the acts and declarations of the parties in connection with
the instrument.
If the term "understanding" was used as synonymous with
"opinion," then the evidence was properly excluded. The
mere statement of the case is a sufficient argument to show
the impropriety of the witness in the expression of an opinion.
The very object of impanelling a jury was to exclude all
mere opinion and submit to them the facts for their opinions.
If the witness employed the word in its common accepta-
tion, the ruling of the court was still unquestionably right.
Understanding, in common parlance, means a comprehension
of a particular state of things. The object of the testimony
should have been not to obtain the idea of the witness upon
27C> Village of Lockport v. Gaylord. [Sept. T.,
Syllabus.
undisclosed facts, but to elicit facts to enable the jury to form
their conclusion.
The testimony was properly excluded.
We do not think it was error to refuse the introduction of
the testimony of appellee for the purpose of contradiction, as
transcribed from a phonographic report of a former trial be-
tween these parties. So far as the record shows, appellee had
never seen this transcript of his evidence, and did not even
know of its existence. It may have been a fair and truthful
report of his testimony, and it may not.
These reports are taken for the convenience of the parties.
The legislature has not declared that they shall be evidence
upon the trial, or for any purpose, and we have no power to
legislate.
For the refusal to permit the witness Ford, to answer, the
judgment is reversed and the cause remanded.
Judgment reversed.
President and Trustees of Lockport
v.
George Gaylord.
1. Town charter — borrowing money. Where the charter of a town
prohibited the trustees from borrowing money, unless authorized by a vote
of its citizens, and they directed the street commissioner to open a street,
and in doing so he borrowed from the plaintiff, at different times, various
sums of money, amounting to several hundred dollars, the trustees after-
wards issued orders on the treasury for the amount, and suit being brought
to recover the amount due on them: Held, that the orders were issued in
violation of law, and were void, as the transaction was, in substance, bor-
rowing money without being authorized by a vote of the citizens of the
town.
2. Curative law — constitutional power. In such a case, after the orders
were issued, the general assembly passed a law amending the town charter,
1871.] Village of Lockport v. Gaylord. 277
Opinion of the Court.
and by a section therein declared the orders should be valid and binding,
but the title of the act had no reference to the validating of these orders:
Held, this was a special or local law, and that there were two subjects in
the law, and the constitutional requirement was not observed in express-
ing this matter in the title, and the provision to make the orders valid was
therefore void, and they were not affected by the enactment.
Appeal from the Circuit Court of Will county; the Hon.
Josiah McRoberts, Judge, presiding.
Messrs. VanArman & Vallette, for the appellant.
Messrs. Fellows & Leonard, and Mr. L. S. Parker, for
the appellee.
Mr. Justice Sheldon delivered the opinion of the Court :
The board of trustees of the village of Lockport ordered the
street commissioner to repair, or rather open, Seventh street.
He proceeded to do so, and in the execution of the work, bor-
rowed from the plaintiff, at different times, sums of money,
amounting in all to several hundred dollars. The commis-
sioner made his report, showing his receipts and expenditures
in detail, and the trustees ordered their clerk to issue to the
plaintiff orders on the treasury for the amounts borrowed of
him. This was done, and this suit was brought to recover the
amount of these orders. The plaintiff recovered judgment
in the court below, and the defendant appealed.
The charter of the village has the following clause :
" The said trustees shall have no power to borrow money,
or issue any evidences of indebtedness, at any time, for an
amount above what is already provided for by taxes levied, or
other certain sources of revenue, unless specially authorized
so to do by a vote of the majority of the legal voters of the
corporation."
It is contended that, in this transaction, the trustees bor-
rowed money ; that the orders issued on the treasury are evi-
dences of indebtedness, and that as the conditions under the
foregoing provision of the charter, on which these things
278 Village of Lockport v. Gaylokd. [Sept. T.,
Opinion of the Court.
might be done, did not exist, there can be no recovery in this
suit.
We incline to regard this position as well taken. By the
provision in question, the legislature seem to have undertaken
to protect the citizens of this village against the disastrous
consequences which have elsewhere resulted, from the reck-
less and improvident financial management of municipal offi-
cers. It is much easier to make public improvements on
credit than with ready money ; to throw the expense of them
upon others who are to come after, than to pay for them at the
time. The credit system tempts to the making of lavish and
unnecessary expenditures. The contrary one leads to the
making of such only as are needful and judicious, and tends
to insure economy in the making of them.
Instances are not wanting in the experience of the State,
where municipalities have gone on making improvements un-
der a vicious credit system, causing depreciation of their credit
and their evidences of indebtedness to be hawked about at
large discounts, whereby they were compelled to pay greatly
enhanced prices for whatever they got done, resulting in the
accumulation of burdens of debt weighing them down in bank-
ruptcy.
The general assembly thought proper, for the protection of
the citizens of this village, to secure for them the " pay as you
go" policy, and prevent the making of expenditures in ad-
vance and in anticipation of the means of payment, by deny-
ing to their officials the power of borrowing money or issuing
any evidences of indebtedness at any time for an amount
above what was already provided for by taxes levied, or other
certain sources of revenue, unless specially authorized so to do
by a vote of the majority of the legal voters of the corpora-
tion. These conditions which authorized the borrowing of
money or issuing of evidences of indebtedness did not exist in
this case.
We regard the transaction in question as essentially a bor-
rowing of money by the trustees, and that to sanction it would
1871.] Village of Lockpokt v. Gaylord. 279
Opinion of the Court.
be to allow a plain evasion of the charter. We deem it our
duty to give effect to this provision of the charter and secure
to the citizens of this village the protection intended, and not
fritter away the provision by construction.
We hold, then, that the transaction with the appellee was
unauthorized and void, as within the direct prohibition of the
charter.
But it is insisted that the act of the trustees was legalized
by subsequent legislation.
In 1869, the legislature passed an act entitled, "An act to
amend the charter of the village of Lockport, passed Febru-
ary 12th, A. D. 1853," the 6th section of which is as follows:
" That the appropriations made by the president and trus-
tees, and orders drawn by the clerk in February, A. D. 1867,
be and the same are hereby fully legalized in all respects."
The orders sued on bear date February 19th, 1867, and so
appear to come within the purview of the act.
To this it is answered, that the act of 1869 is in violation
of the following clause of section 23 of article 3 of the con-
stitution : " And no private or local law which may be passed
by the general assembly shall embrace more than one subject,
and that shall be expressed in the title;" that the subject of
the sixth section is not expressed in the title of the act. The
title is appropriate to all the provisions of the first five sections
of the act, as they are in reference to and amendatory of the
said original act mentioned in the title.
We do not perceive how the 6th section can be regarded
as germane to the subject expressed in the title. The legaliza-
tion of unauthorized acts of the corporation can not be consid-
ered to be amendatory of its charter. The 6th section does
not profess to amend the original act of incorporation, or define
the powers to be exercised by the corporation in future; its
only possible effect is to benefit individuals who may happen
to be the holders of the certificates mentioned. The object of
this 6th section is not expressed in the title of the act, and we
280 Holden v. Hulburd et al. [Sept. T.,
S}ilabus. Statement of the case.
must hold that it was passed in violation of the constitution,
and is therefore void.
For the reasons indicated, in the view of a majority of the
court, the judgment must be reversed and the cause remanded.
Judgment reversed.
Charles C. P. Holden
v.
Joel H. Hulburd et al.
1. Instructions sJwuld be based on the evidence. It is not error to re-
fuse instructions, although they assert correct principles of law, when
they are not applicable to the facts in the case.
2. New trial — verdict against the evidence. In this case the verdict of
the jury is regarded as fully sustained by the evidence.
Appeal from the Superior Court of Cook county ; the
Hon. Joseph E. Gary, Judge, presiding.
This was an action of assumpsit, brought by Joel H. Hul-
burd and George A. Herrick against Charles C. P. Holden to
recover the balance due on a bill of builders' hardware pur-
chased by the defendant from the plaintiffs. A. trial by jury
resulted in a verdict and judgment for the plaintiffs for §346.30.
To reverse this judgment the defendant appeals.
Mr. Wm. H. Holden, for the appellant.
Messrs. Bacon & Norton, for the appellees.
1871.] Holden v. Hulbued et al. 281
Opinion of the Court.
Per Curiam : The evidence abundantly sustains the ver-
dict.
The bill of goods amounted to $1308.52. It was credited
with $800 cash, paid by appellant, and with merchandise re-
turned $162.22, leaving a balance of $34G.30.
The evidence in behalf of appellees was, substantially, that
appellant employed an architect to superintend the erection of
certain buildings, and gave to him authority to purchase hard-
ware for the same.
The architect testified that he purchased articles, similar to
those described in the bill, from appellees ; that he agreed
with them as to the prices of the leading articles ; that a pass-
book was kept which was seen by appellant wrhen he made a
payment of $500 ; that appellant had this book when last seen
by him, and that he knew of the purchases of appellees.
Notice was given to produce the pass-book upon the trial,
but it was not brought forward by appellant.
Hulburd, one of appellees, testified that he spoke to appel-
lant before the purchase of any goods ; he replied that his
architect should examine them ; sold a few of the articles ;
that the prices were fixed by his partner, and that he took the
pass-book to appellant who paid him $500 on the bill, and
that he made no objections.
Herrick, another of appellees, testified that he agreed with
the architect as to the prices ; that he sold about one-half of
the goods ; the prices were fair and reasonable ; that he could
identify them, and that they were delivered according to
agreement.
Cameron, a carpenter upon the buildings, testified that he
was authorized by the architect to exchange* some of the goods,
and that he purchased some.
A clerk of appellees testified that he sold the goods not sold
by Herrick, who fixed the prices.
On the part of the defense there was evidence to show that
the liardware for such houses ought to have cost a much less
sum.
282 Hoi.den v. Hulburd et al. [Sept. T.,
Opinion of the Court.
Appellant also testified that the goods were of a high price,
but admitted the employment of his architect to purchase for
him, and that he handed to him the card of appellees.
The evidence most decidedly preponderates in favor of the
verdict. Indeed, it is rare that so long an account is so fully
proven.
The refusal of the court to give the following instructions
is assigned for error :
"The jury are instructed, as a matter of law in this case,
that a principal is only bound by such acts of his agent as are
in the line of his agency, and if an agent does things outside
of his agency and not within its legitimate range, then his
principal is not bound by such of his acts as are thus outside
of his agency.
"An agent should act fairly by his principal, and any acts
of fraud on his part, known to the person or persons who seek
to bind the principal, can not bind the principal as to such
fraudulent acts."
These instructions should not have been given. While they
assert correct principles of law, they have no application to
the facts proven.
The architect pursued his authority and acted within the
scope of his agency.
It is a fair presumption that the acts of Cameron were In-
direction and under the supervision of the architect. The
exchanges and purchases by him, as he testified, were to facil-
itate the prosecution of the work.
The fraud insinuated is not developed by the evidence.
From the record before us, we think that the judgment
should be affirmed.
Judgment affirmed.
1871.] Wetherill v. Ohlendorf et al. 283
Syllabus. Statement of the case.
James N. Wetherill
v.
William Ohlendorf et al.
1. Mechanic's lien — whether it exists. Where a party contracts to
build a house, and other parties furnish materials, which are used in the
building, on the credit of the contractor, the material-men have no lien on
the building for the materials so furnished.
2. Same — construction of an agreement — lien must be created under the stat-
ute. Heeney & Campbell furnished, on the credit of a party who had con-
tracted to build a house for one Gierke, materials which were used in the
building of Gierke's house. When the house was partially completed, the
contractor having abandoned his contract, Gierke executed the following
agreement, in writing: "This is to certify that I, H. Gierke, hold myself
responsible for all lumber and materials furnished by Heeney & Campbell
for the erection of store on Halsted street and in course of erection, and
will pay all of our account for said store when the building is complete":
Held, that a fair interpretation of the agreement would only bind Gierke
to the extent of materials delivered after its date — the claim that it inclu-
ded all the materials before that time furnished being answered by the fact
that there was no consideration expressed in the writing for the under-
taking.
3. And if there had been a consideration expressed, it would not have
created a lien on the premises for the materials previously furnished, — as
a mechanic's lien, or that of the material-men, being statutory, and pecu-
liar in itself, can only be claimed when the case is brought within the stat-
ute.
Appeal from the Circuit Court of Cook county; the Hon.
John G. Rogers, Judge, presiding.
William and Louis Ohlendorf filed their petition to estab-
lish and enforce a lien on certain premises for the materials
furnished by them and used in erecting a building on the
premises. Herman Gierke and James N. Wetherill were made
parties defendant.
Heeney and Campbell filed an intervening petition to estab-
lish a lien on the same premises for materials furnished by
them and used in the building.
284 Wetherill v. Ohlexdorf et al. [Sept. T.,
Statement of the case.
Gierke held a leasehold interest in the lot of ground, and
contracted with one Sullivan to erect the building on the same.
Wetherill claims, the premises having been sold under a
judgment against Gierke, and he, TTetherill, having purchased
from the purchasers at such sale, that he is now the owner of
the leasehold interest in the lot and building, and denies the
lien of the several petitioners.
After a portion of the materials for which Heeney & Camp-
bell claim a lien had been furnished, Gierke, Sullivan having
abandoned his contract to erect the building, executed to them
the following written agreement:
" Chicago, Sept. 6, 1870.
"This is to certify that I, H. Gierke, hold myself responsi-
ble for all lumber and materials furnished by Heeney &
Campbell for the erection of store on Halsted street and in
course of erection, and will pay all of our account for said
store when the building is complete. Number of store, 3-13
Halsted street."
Thereupon Heeney & Campbell furnished the remainder of
the materials, for which they claim a lien.
Upon a hearing by the court, a jury being waived, a decree
was entered finding that Herman Gierke is indebted to Ohlen-
dorf Bros. $1077.16, to Heeney & Campbell $473.66; that
the indebtedness in both cases is for materials furnished in
the erection of the building known as No. 343 South Hal-
sted street, under contract with Gierke, and the same is a lien
on the premises, and that the interest in the lot is a leasehold
held by Gierke under a lease from Hull. Ordered, that the
petitioners recover of Gierke the amounts of their respective
debts; that said sums are a lien upon said leasehold interest
and the house, the lot being a part of No. 1, etc., commencing
at point, etc., and unless said sums are paid within 100 days
from date that the leasehold interest and building be sold as
other lands and tenements are sold on execution, etc.
Wetherill appeals.
1871.] Cook u. Norton et al 285
Syllabus.
Mr. R. H. Forrester, for the appellant.
Messrs. Jones & Gardner, Messrs. Runyan & Avery,
and Messrs. Loomis & Comstock, for the appellees.
Per Curiam : The proof is quite satisfactory in this case,
that the lumber delivered by Ohlendorf was on the credit of
Sullivan, the contractor, and to him he must look for pay-
ment. No lien is created against the lot, as the owner of it
made no contract.
A fair interpretation of Gierke's written undertaking to pay
would only bind him to the extent of the lumber delivered by
Heeney & Campbell after the date of it. The claim that it
included all the lumber before that furnished, is answered by
the fact that there is no consideration expressed in the writing
for the undertaking, and if there Avas, it would not create a
lien on the premises. A mechanic's lien, or that of the mate-
rial-men, is statutory, peculiar in itself, and can only be claimed
when the case is brought within the statute.
There is no pretense for this action. The judgment is re-
versed. #
Judgment 7*eversed.
Isaac Cook
v.
Emily M/Norton et ah
Appeal — stare decisis. Where a case has been twice before this court,
and all of the questions decided in the same way on both trials, when the
record is brought here a third time on the same questions, the court will
refuse to again consider the errors assigned. The case must be considered
as determined by the former adjudications, and the questions can not be
opened for re-discussion.
286
Cook v. Norton et aL
[Sept. T.,
Opinion of the Court.
Appeal from the Superior Court of Cook county ; the Hon.
Joseph E. Gary, Judge, presiding.
Messrs. Sleeper & Whiton, for the appellant.
Messrs. Dent & Black, for the appellees.
Mr. Chief Justice Lawrence delivered the opinion of
the Court :
This record is here for the third time. The opinion of the
court on the two former occasions will be found reported in
43 111. 391, and 48 111. 20. When the case was first before
us, we held the defense under the statute of limitations would
have been complete but for the insufficient proof of one of
the tax receipts, and on that ground the judgment was re-
versed and the cause remanded. On the next trial, the defect
in the proof was supplied, and after judgment for the defendant,
the record was again brought here, and we again held that the
defendant was entitled to protect himself under the statute,
and also held the proof complete, and affirmed the judgment.
The plaintiff having taken a new trial under the statute,
and another judgment having been rendered against hi in in
the Superior Court, he again brings the record here and urges
for the third time, but on this occasion by new counsel, that
the defendant can not set up the statute, presenting again for
the consideration of the court the same questions that were
formerly presented by very able counsel in a very exhaustive
argument. Not a single new fact appears in the record.
In the case of Hollowbush v. McConnel, 12 111. 204, which
was brought here the second time and argued in full, after the
court had, at a previous term, settled the questions controlling
the case, and had remanded it for the purpose of taking an
account, the court use the following language :
"Both these questions were substantially settled when the
case was here before. The first one was the very point then
decided, and the court has now no power, if it had the incli-
nation, to reverse that decision. There is no mode provided
1871.] City of Galesburg v. Higley. 287
Syllabus.
bv law, except it be upon a rehearing, whereby the final de-
cision of a case in this court can be reversed or set aside at a
subsequent term. There must be an end of litigation some-
whore, and there would be none if parties were at liberty, after
a case had received the final determination of the court of last
resort, to litigate the same matter anew and bring it again and
again before the court for its decision." Washington Bridge
v. Stewart, 3 Howard, 413; Booth v. Commonwealth, 7 Mete.
286.
We commend this language to the attention of counsel for
appellant, and will only remark further that, after this court
has twice decided, upon this same record, the questions now
presented, Ave must regard the action of counsel, in bringing
the case here for another argument, as showing a misconcep-
tion of their professional duty, and not entirely respectful to
the court.
For the reasons given in our former opinions, the judgment
is affirmed.
Judgment affirmed.
The City of Galesburg
v.
Erastus D. Higley.
1. Municipal corporation — power over streets and sidewalks. Where
the cit3r charter clothes it with power, and it is theduty of the city, to pre-
vent obstructions from continuing in the streets and sidewalks, it is gross
negligence, if known to the city officials, to permit an opening in a side-
walk, made to :.dmit light into the basement of an adjoining building, tore-
main a long time without gratings or other protection, and to permit large
goods boxes to remain piled upon the opposite side of the walk so as to im-
pede and endanger the safet}' of persons passing along the walk ; and when
continued a great while, the city will be charged ^^•ith notice of the defects
and obstructions, and is liable for injuries produced thereby.
288 City of Galesbueg v. Higley. [Sept. T.,
Opinion of the Court.
2. Instructions— fi?iding of jury under. An appellate court will not
sajr a jury has disregarded an instruction when the evidence is conflicting,
and it is a fair question for the jury to determine whether they shall be-
lieve the witnesses on the one side rather than the other; nor will the court
sa}r that the witness was impeached because other witnesses testified to con-
tradietory statements said to have been made by him, especially when the
contradicting witnesses are not positive in their testimony, and the witness
sought to be impeached is corroborated by other evidence.
3. Damages — verdict. A verdict will not be set aside in this class of
cases because the damages appear to be large. They must be excessive aDd
palpably so, before the court will interfere.
Appeal from the Circuit Court of Knox county ; the Hon.
Arthur A. Smith, Judge, presiding.
Messrs. Williams, Clark & Calkins, for the appellant.
Messrs. Craig & Harvey, and Messrs. Hannaman &
Kretsinger, for the appellee.
Mr. Justice Walker delivered the opinion of the Court:
This was an action on the case brought by appellee, in the
Knox circuit court, against appellant, to recover for injuries
sustained from his falling into an opening in the sidewalk of
one of the public streets of the city.
It appears that the opening was about three feet long, twenty
inches wide, and eighteen deep, and was on the side of the
walk next the wall of a building, and was made for the pur-
pose of admitting light through a window into a cellar under
the building. By the fall, his left wrist was sprained, and he
was perhaps otherwise bruised. It seems that appellee was
returning from the railroad depot, and it was dark and raining
at the time, and to avoid getting wet he swears he was run-
ning on the sidewalk, and came in contact with some boxes on
the outer edge of the sidewalk, and turning to the other side
of the walk, to avoid the boxes, he fell into the opening. The
accident occurred between eight and nine o'clock in the even-
ing.
1871.] City of Galesburg v. Higley. 289
Opinion of the Court.
The boxes were of large size, and were nearly opposite to
the opening. The opening had been covered by iron grating,
which had for a long time been removed, and it was at the
time wholly unguarded by railing or other protection.
A careful examination of the evidence shows that the injury
was serious, painful and more than probably permanent in its
character, and if not, that it Avill be slow in recovering and
require a great while for the cure to become complete.
The grounds most strongly urged for a reversal are, whether
the city was negligent in failing to remove these obstructions,
and in not having the opening closed or secured against dan-
ger of accident.
The city is clothed with ample power, and it is its duty,
to prevent such obstructions or the keeping open such pits on
the public and traveled streets of the city. Permitting this
dangerous obstruction and defect on this sidewalk was gross
negligence, if known to the city. That its officials must have
known of this and two other openings in the sidewalk in the
front of the building to accommodate it with light, there can
scarcely be a doubt. They had been unguarded for months,
if not years, previously, and the city must be presumed to
have had notice of their condition ; and that they were dan-
gerous is clearly shown, as, previous to the injury of appellee,
some four or five persons had fallen into one or another of
them whilst passing in the night time.
"We regard the evidence on this question as clear bevond
doubt, although some witnesses may say they do not regard
them as dangerous. The fact that so many persons had pre-
viously fallen into them is more conclusive than mere opinion
to the contrary.
It is next insisted that the evidence fails to show that the
city had notice that there were boxes on the sidewalk ; that
they may have only been placed there a few hours previously ;
and the evidence of one of appellant's witnesses is referred to
in support of this theory. He gives it as his opinion that the
box against which appellee ran had that evening fallen upon
19— 6 1st III.
290 City of Galesburg v. Higley. [Sept. T.,
Opinion of the Court.
the walk from a pile outside. Why he should advance such
an opinion, he does not state, and no reason appears in the
evidence, unless it be to exculpate himself from neglect of
duty in not removing the obstruction, and to relieve the city
from liability. There is nothing shown from which we can
reasonably conclude that such a thing would probably occur.
All bodies, according to the laws of nature, remain at rest, un-
less sufficient force is applied to overcome such a tendency, and
yet it is insisted that these boxes may have departed from that
natural state without any cause being assigned.
But there is abundant evidence that boxes were on the side-
walk at various times prior to the accident. One witness says
they were there all of the time. From this evidence the jury
were fully warranted in the inference that these boxes had been
there a sufficient length of time to charge the city with notice.
They had the right to believe that, if it was usual for boxes
to remain there, these had been there long enough for those
having the repair of the streets in charge to have known it,
and removed them; and with all of this circumstantial evi-
dence against the city, there was no evidence on its part to
show that they had been there but a few hours, as it is con-
tended they may have been — if there only a few hours, it could
no doubt have been proved by persons occupying the adjacent
buildings.
We fail to perceive how the jury could have reasonably ar-
rived at any other conclusion than they did.
It is likewise insisted that the jury disregarded appellant's
instructions, and particularly the fifth. It informs them that, in
determining the weight to be given to the testimony, they should
take into consideration the fact, if it appeared, that appellee
was contradicted by a number of witnesses, who are named,
as to his statements respecting the injury a short time after it
occurred, and if they believed that he had sworn willfully false
as to any material fact, then they were at liberty to disregard
his evidence as to any and all of his statements not sworn to
bv one credible witness. The last clause of this instruction is
1871.] City of Galesburg v. Higley. 291
Opinion of the Court.
clearly erroneous, as a witness may be, and frequently is, as
fully corroborated by circumstantial evidence as by that of a
witness.
But on examining the evidence of the witnesses referred to
in the instruction, we are not prepared to hold the jury did
wrong in believing appellee's version of the occurrence. They
had before them the undisputed fact that he had fallen, and
that he was seriously injured; and the witnesses are by no
means positive as to what he did say. Again, all know that
it is easy for a conversation to be misunderstood, or not re-
membered, and one of the witnesses seems to have made it his
business to seek for admissions from appellee. One of them
first says that appellee told him he did not know that he was
hurt until the next evening, whilst on his cross examination
he says appellee said he was not aware that he was seriously
hurt until that time. This is slender ground upon which to
claim a contradiction.
Another witness states that appellee, at the time the acci-
dent occurred, stated that he fell on the palm of his hand, and
the two physicians say they so understood him when he called
on them for advice. Even admit this to be true, still it does
not follow that he willfully swore falsely. The fall only occu-
pied an instant of time, and being unexpected, he would not
remember all of the particulars with clearness and perfect
distinctness, and may, on reflection, have concluded that it oc-
curred differently. But we are not prepared to hold such a
fact so material that it should destroy his' entire testimony,
when we have concurrent evidence that he. fell, in all other
particulars, as he states, and that he was then injured. His
evidence as to all material points was sustained by corrobor-
ating evidence, and the jury acted under the instructions.
It was urged that the injury resulted from bad treatment
and malpractice in managing the injury. The physicians dis-
agree as to whether the injury was the natural result of the
fall. The appellee's medical witnesses seem to have testified
as fairly and intelligently as those introduced by the city, and
292 City of Galesburg v. Higley. [Sept. T.,
Opinion of the Court.
we can not hold that the jury were required to disregard the
evidence of appellee's witnesses rather than that of appellant's.
The injury was received, and the jury had before them evi-
dence of the condition of appellee's hand, which was shown
to have been paralyzed and useless, and the presumption would
be that it was the result of the fall, if not shown to have been
produced by some other cause, and we are unable to say that
such other cause has been shown.
It is lastly urged that the damages are excessive. Whilst
they are perhaps high, still they are not so excessive as to re-
quire a reversal. When Ave consider that appellee's hand is
paralyzed and can not be used, and when all of the evidence
fails to show that it is probable that it will be restored, we can
not say that $3000 is grossly excessive. To be deprived of
the use of a hand permanently is a great and grevious loss to
any one, and it becomes more so to a person who is dependent
upon his labor for the support of himself and a family. The
mere fact that we might not have found so large a sum had we
been jurors, is not ground for undertaking to control the
action of a jury in assessing damages, and we can not say the
finding is grossly excessive ; and the judgment of the court
below is affirmed.
Judgment affirmed.
Mr. Chief Justice Lawrence took no part in the decision
of this case.
1871.] Buckley v. Boutelliek. 293
Syllabus. Opinion of the Court.
Daniel F. Buckley
v.
John Boutelliek.
1. Mechanics' lien — description of the premises. In a suit in chancery
to establish and enforce a mechanics' lien, it was objected that the descrip-
tion of the premises was so indefinite and uncertain as to be no guide to
the sheriff in advertising and selling them. In the record the premises
are described as "building No. 181, South Leavitt street, in the city of
Chicago, and further described as lot 8 and 19 in block No. 1 of Banks'
subdivision of lot 9 in block 11 of Rockwell's addition to Chicago." This
description was held sufficient.
2. And the objection that the congressional subdivisions of the land
were not given in the description, was regarded as frivolous.
3. Amendment of pleadings. After the cause was submitted to the
jury, it being discovered that the replication which had been filed trans-
posed the parties, the court permitted a formal and proper replication to
be filed: Held, that such action of the court was not error.
Appeal from the Superior Court of Cook county ; the Hon.
William A. Porter, Judge, presiding.
Mr. John L. Doran, for the appellant.
Mr. D. L. Carmichael, for the appellee.
Mr. Justice Breese delivered the opinion of the Court:
This was a bill in chancery to establish and enforce a me-
chanic's lien, and an appeal taken, and the case presented on
an abstract so barren and imperfect as to justify the court in
dismissing the appeal. Nor does the brief filed by the appel-
lee aid us very much in our examination of the case.
The point made by appellant is, that the description of
the premises is so indefinite and uncertain as to be no guide
to the sheriff in advertising and selling them.
The description is not set out in the abstract, nor in appel-
lant's or appellee's brief, and we are referred to the record for
294 Hoag v. Switzer et al. [Sept. T.,
Syllabus.
it. In the record the premises are described as "building iS'o.
181 South Leavitt street, in the city of Chicago, and further
described as lot 8 and 19 in block ISTo. 1 of Banks' subdivision
of lot 9 in block 11 of Rockwell's addition to Chicago." The
objection that the congressional subdivisions of the land are'
not given, is frivolous.
Another objection is, that the court permitted a formal and
proper replication to be filed after the cause was submitted to
the jury, it being discovered that the replication which had
been put in transposed the parties. This was proper, under
the decision of this court in Jameson v. Conway, 5 Gilm. 227.
There is no error in the record, and the decree is affirmed.
Decree affirmed.
James Hoag
Maetin Switzer et al.
1. Constitution of 1848 — road damages. Under the constitution of
1848, and the statutes in force in March, 1870, a party is not entitled to
damages by reason of the construction of a highway adjoining and abut-
ting against his lands where no part thereof has been taken for the use of
the road.
2. Road damages — power of commissioners. At that date the commis-
sioners of highways had no power to consider, assess or award consequen-
tial or remote damages to a party by reason of the construction of a high-
way where no part of his lands had been taken for that purpose. The road
law of 1861, sections 55, 56 and 68, does not conflict with this view, but
sustains it.
3. Division fences — their removal. The proprietors of adjoining lands
are not under any legal obligation to perpetually maintain division fences
with each other. It is a matter of convenience between the parties, which
either party may, at his pleasure, terminate by giving the statutory notice.
And when the same thing, and nothing more, is done, under the direction
of the town officers, no damages can occur.
1871.] Hoag v. Switzer et al. 295
Opinion of the Court.
Appeal from the Circuit Court of Kane county; the Hon.
Silvanus Wilcox, Judge, presiding.
Messrs. Botsford & Barry, for the appellant.
Messrs. Mayborne & Brown, for the appellees.
Mr. Justice Scott delivered the opinion of the Court:
In March, 1870, the commissioners of the town of St.
Charles, upon petition presented, proceeded to, and did, lay
out and establish a public highway, not on the lands of appel-
lant, but adjoining thereto, the south line of his land consti-
tuting the north line of the road where the same passes his
premises. The commissioners assessed the damages which
the owners would sustain by reason of the construction of the
road over their respective lands, but declined to assess any
damages to the appellant, on the ground that no land belong-
ing to him had been taken for the use of the road.
Notice having been served on the several parties through
whose lands the road passes, to remove their fences and open
the road to the use of the public, the appellant filed his bill
for an injunction to restrain the town officers from causing
the highway to be opened, and also to restrain the proprietors
of the adjoining lands from removing their division fences
built in connection with the fences on his premises.
The principal allegations in the bill upon which the appel-
lant expects relief in a court of equity are, that the highway
as now laid out abuts on the south line of his premises for a
very considerable distance; that there is a division fence up-
on the line for the entire distance, one-half of which, only, he
had hitherto been required to maintain, the other half having
been maintained by the owners of the adjoining lands; that
if the road shall be established he will be compelled to main-
tain and keep in repair the entire line of fence, and to rebuild
or purchase of the adjoining proprietors one-half of the same,
besides having the whole south line of his farm exposed to the
296 Hoag v. Switzer et al [Sept. T.,
Opinion of the Court.
encroachments of stock and travel on the highway, and that
he had never petitioned for, or consented to, the laving out
of such road, nor received any damages, and that the commis-
sioners had refused to consider whether he had sustained any
damages.
Upon filing the answer of the appellees, supported by affi-
davits, the court dissolved the injunction which had previously
been temporarily awarded, and dismissed the bill, and that
decision is now assigned for error.
The only question arising on the record material to bo con-
sidered is, whether the appellant is entitled to damages by
reason of the construction of a highway adjoining and abut-
ting against his lands where no part has been taken for the
use of the road.
The proceedings in regard to laying out the road were had
prior to the adoption of the present constitution, and are not
affected by any construction that may be given, to the 13th
section of the 2d article, entitled "Bill of Rights." The. ques-
tion must be determined by the construction that shall be
given to the statutes in force at the time the proceedings wore
had.
We have carefully examined the statutes in force at that
date, and can find in them no provision for awarding conse-
quential or remote damages to a party by reason of the con-
struction of a highway where no part of his lands has been
taken for that purpose. The question is not whether a person
ought to be redressed where his promises may have been in-
jured by reason of taking of the adjoining private property
for public uses, but whether the legislature has provided any
remedy other than the common law remedies of which such
party may at any time avail.
It is insisted that the damages required to be assessed un-
der the 56th section of the act of 1861, are not confined to
damages to the owners of lands actuallv taken for the use of
the road, but may extend to a party who may feel himself
1871.] Hoag v. Switzer et aL 297
Opinion of the Court.
aggrieved by the construction of a highway adjoining and abut-
ting against his premises.
The true meaning of that section must be ascertained from
the context. By reference to the 55th section of the road law,
it will be seen that, "whenever the commissioners of high-
ways shall determine to lay out any new road or alter any old
one. they shall cause a survey to be made by a competent sur-
veyor, who shall make report to them of such survey, accom-
panied with a plat particularly describing the route by metes
and bounds, courses and distances, and also the land over
which the road passes." It is in regard to lands over which
the road passes, where the commissioners can not agree with
the owners, that they are required, under the 56th section, to
assess damages, and not to the owners of lands who may deem
themselves aggrieved by the construction of a highway, whose
lands are not actually taken for that purpose. There is no
provision in regard to assessing damages to parties who may
feel themselves injured, or who may have actually suffered
consequential damages by reason of the public appropriating
the adjoining private property to the uses of a public highway
where no part of their land is taken, and in the absence of
such a provision the commissioners are not authorized to as-
sess. The duties and powers of commissioners of highways
are defined by law, and they can exercise no other than such
as are conferred by statute. Whether the law affords a party,
who may be actually injured by the construction of a highway
abutting against his lands, any remedy, it is not now necessary
for us to express an opinion. Our investigation is, and must
be, confined to the inquiry whether the commissioners of high-
ways, under the statute, are authorized to award damages in
such cases.
We do not think that the view suggested bv the counsel for
the appellant is at all aided by a reference to the 68th section
of the act of 1861. That section only provides who may, and
in what manner appeals may be taken from assessments made
298 Hoag v. Switzer et al [Sept. T.,
Opinion of the Court.
under the preceding section, and it does not, and was not in-
tended, to confer any new powers on the commissioners of
highways.
It is conceded that no part of the land taken for the use of
the road in controversy belonged to the appellant, and if lie
is damaged at all it would be by the wrongful removal of the
division fences. The suggestion that the commissioners of
highways may have acted with improper motives in making
the location of the road, can not be considered in a proceed-
ing of this kind.
We are unable to comprehend in what manner the appel-
lant would be injured by the construction of the road. The
proprietors of the adjoining lands were not, and are not, un-
der any legal obligations to perpetually maintain division
fences with the appellant. They could at any time, by com-
plying with the provisions of the statute in that regard, re-
move their respective fences. It is a matter of convenience
between the parties which either party may, at his pleasure,
terminate, by giving the proper notice. Even under the no-
tice given by the commissioners of highways to the owners of
the inclosed lands through which the road passes to open it,
they could not remove their division fences without having
first given the appellant the statutory notice of their intention
so to do. No one will doubt that it would have been lawful
for the owners of the adjoining lands to have given the notice
required by the statute, at the proper time, of their intention
to remove their part of the division fences, and, of their own
motion, to dedicate a highway abutting against the lands of
the appellant to the use of the public. In such a case, it
would hardly be insisted he would be entitled to damages. It
is not perceived how he is any more injured because they do
the same thing, and nothing more, under the directions of the
town officers.
Under the construction that we have given to the statute,
the appellant was not entitled to have the question of dama-
ges considered by the commissioners of highways at the time
1871.] Flint v. Lewis. 299
Syllabus.
they laid out the road, nor was it necessary that any assess-
ment should be made of the damages he may have sustained
before the road could be legally opened. They had no lawful
authority, under the statute, to make any assessment in the
premises, and rightfully declined to do so.
The views that we have expressed render it unnecessary to
discuss the other points made in the argument.
The injunction was properly dissolved and the bill dis-
missed, and the decree is affirmed.
Decree affirmed.
Solomon F. Flint
V.
William Lewis.
1. Trust abused— jurisdiction in equity. Where there is a conspiracy
by the holder of a note secured by trust deed, to take advantage of the
maker of the deed, and, by an abuse of the trust, wrongfully to deprive
him of his equity of redemption, the right of the latter to relief rests upon
the clear and solid ground of equitable jurisdiction over trusts, for the con-
trol of all fraudulent abuses of them, unless barred by the paramount
claims of a bona fide purchaser for valuable consideration, and without no-
tice.
2. Notice to purchaser — what constitutes. Where a person is, and
for thirty years has been, in the open and visible possession of a tract
of land as his farm and residence, that possession is notice to all the world
that he has some interest in the laud; and whoever buys it while that pos-
session continues, takes it subject to that interest, whatever it may be.
3. Same — deed as notice. And in such a case, where one half the land
lay within four miles of a thriving and populous city, and the other half
much nearer, and was sold under a trust deed at the rate of $100 for each
forty acres, which facts were recited in the deed made by the trustee, a
second purchaser who buys the land a few days later, taking a quit-claim
deed in which the expressed consideration is $1000, is chargeable witli no-
tice of all the facts recited in or shown by the deed from the trustee.
300 Flint v. Lewis. - [Sept. T.,
Opinion of the Court.
4. Same — inadequacy of price. And in such a case, where the last pur-
chaser claims to have bought in good faith without notice, and yet lived at
the time within four miles of the land, which was then worth $50 an acre,
his claim must be denied, since it is wholly unnatural to suppose that he
made the purchase without knowing where the farm was situated, its gen-
eral character and value; and the tact that a farm worth $4000 had been
lately sacrificed for $200, would suggest to any man of ordinary judgment
that there was some mistake, or some overreaching, in the transaction suf-
ficient to put him upon inquiry, and his failure to make such an inquiry is
equivalent to notice.
Appeal from the Circuit Court of Knox county; the Hon.
Arthur A. Smith, Judge, presiding.
Messrs. Williams, Clark & Calkins, and Messrs. Frost
& Tuxxicliff, for the appellant.
Messrs. Craig & Harvey, and Mr. S. C. Laxphere, for
the appellee.
Mr. Justice McAllister delivered the opinion of the
Court :
On the 23d day of May, 1863, the appellee, William Lewis,
being indebted to a firm doing business in the city of Gales-
burg, in this State, under the name of C. S. Colton & Sons, in
the sum of $874.08, executed to said firm his four promissory
notes of that date, for the sum of $218.52 each, and payable
respectively in one, two, three and four years from date, with
interest at the rate of ten per cent per annum, payable annu-
ally. As security for the payment of these notes, he, at the
same time, executed a trust deed, for the benefit of the payees,
to one Milo D. Cooke, as trustee, the deed'eovering two forty-
acre tracts of land situate in Knox county, near said city, and
properly described in the deed, which declared the trust and
contained the powrer that, in case of default in the payment of
the notes, either, or any part of them, then, on the application
of any legal holder, it should be lawful for said trustee to sell
and dispose of said premises and all right, benefit and equity
of redemption of the grantor therein, at public auction, at the
1871.] Flint v. Lewis. 001
Opinion of the Court.
south door of the court house of said county, for the highest
and best price the same will bring in cash, ten days public notice
having been previously given of the time of such sale, by ad-
vertisement in one of the newspapers at that time published
in said county. It also authorizes the trustee to execute a deed
to the purchaser.
Under this power, the trustee sold the land conveyed. It
was purchased by one Stoddard, for §100 for each forty-acre
tract, to whom the trustee executed a deed, and Stoddard quit-
claimed to Flint.
Lewis filed his bill in the Knox county circuit court, alleging
a fraudulent collusion between Stoddard and one of the Col-
tons, to cheat him out of said lands, and breach of duty on
the part of the trustee, and asked to have the sale and deeds
thereunder set aside, and to be allowed to redeem, alleging
that Flint purchased wTith notice, etc.
Flint, Stoddard, the Coltons, and Cooke, the trustee, were
made parties defendant, and filed their answers, to which rep-
lication was filed.
The cause was heard upon pleadings, proofs and exhibits,
and a decree was rendered in favor of Lewis, setting aside the
sale and deeds. The defendants appealed from that decree, to
this court.
It appears that Lewis paid the first three notes, and all in-
terest, not precisely when due, but in a manner satisfactory to
the payees. When the -last note came due, in May, 1867, it
seems that Colton did not want the principal. The interest
was paid, and by mutual consent the principal was to remain
unpaid another year. About the time it would be due by that
understanding, Lewis called on C. S. Colton and inquired of
him if he wanted his money. The latter proposed to him to
pay the interest and §18.52, so as to reduce the principal to
just §200, and let that remain another year.
William Lewis was far advanced in life, and was blind.
Relying probably on the previous dealings between him and
C. S. Colton, with whom he had all the dealings, so far, when
302 Flint v. Lewis. [Sept. T.,
Opinion of the Court.
May, 1869, came around, he did not go to see Colton until the
29th day, some three days after the balance was due, by their
verbal understanding. He then asked C. S. Colton if he
wanted his money. The latter replied that he needed the
money. Lewis then said, as he testifies : "Give me the mort-
gage, and I will go to Stoddard and get the money." Colton
then said: " Don't do it; don't you let this mortgage go into
any stranger's hands; it is safe in our hands, and we can do
very well without the money for another year." This, "Wil-
liam Lewis testified, was the first time he had ever said he
wanted the money, and witness supposing, in his blindness,
that Colton was still present, replied: "I will have it in a
few days." But before this remark was uttered, Colton had
gone.
It is true that C. S. Colton, though rather evasively, denies
having such conversation, at the time alleged, and his son,
John B. Colton, who himself claims to have been present, de-
nies it in toto. But the complainant, testifying to an affirma-
tive fact, is corroborated by his son, who was with him, and
there is an inherent probability in his favor arising from other
circumstances.
John B. Colton testifies " that Wra. Lewis wanted to pay
him money on the notes before they were due, andwitnesstoM
him he would rather have the trust deed than the money.
Afterwards, Lewis wanted witness to take the money to ac-
commodate him. It was a portion of what was due on the
trust deed, but not all."
So it was true, in fact, that they could get along another
year very well without the money, and, indeed, it is very ap-
parent, from the evidence, that until C. S. Colton parted with
control over the note, and it was supposed that an opportunity
had been presented to John B. Colton and Stoddard 'to over-
reach old Mr. Lewis, and wrongfully deprive him of his farm
by means of the trust deed, the holders of the note were very
willing to let the balance lie and take their interest, which had
been promptly paid. Besides, old Mr. Lewis, before he gave
1871.] Flint v. Lewis. 303
Opinion of the Court.
the deed, and ever afterwards, was extremely anxious lest
some advantage would be taken of him, and he lose his farm.
The Coltons, including John B., were perfectly aware of this,
and had given him strong assurances that no such advantage
would be taken of him. Acting under this fear, which was
perhaps stimulated somewhat by the abrupt manner in which
C. S. Colton had left him while talking about the balance, he
proceeded at once to raise the money with which to pay it.
He succeeded; and on the 10th of June, 1869, sent his son,
Hiram, with it, to make the payment; but, strange to say,
neither of these Coltons could be found, and he went back
with the object unaccomplished. On the 20th of the same
month, Hiram was sent again, and although using every rea-
sonable decree of diligence, neither of them could be found.
Then, on the 28th of the same month, a neighbor took the
money, Hiram accompanying him, and they both went in
search of some of the Coltons, for the purpose of paying this
balance, but neither could be found, and the messengers were
told that they had all gone East, which appears to have been
untrue.
In the course of these efforts, Stoddard was made aware of
Lewis' purpose to pay the balance.
But what were the Coltons doing, meanwhile ?
After the conversation on the 29th of May, when C. S. Col-
ton left so suddenly, C. S. and his other son transferred their
interest in the note to John B. Colton. C. S. Colton at that
time well knew that old Mr. Lewis had not come prepared to
pay the balance, on account of the manner of their former
dealings, and their expressed desire to let it lie and draw their
interest; and they well knew, from his previously expressed
anxiety in respect to the matter, that they could have the
money in a very few days, by saying that they wanted it. But
C. S. Colton, after giving an assurance which would have the
tendency to allay the old man's fears, withdrew suddenly from
the conference before hearing Lewis' reply, and it is highly
probable, from the fact that they could not be found when the
304 Flint v. Lewis. [Sept. T.,
Opinion of the Court.
messenger was in search of them to make the payments, and
from the fact that Stoddard, who was acting in concert with
them, knew of it, that they were all aware that old Mr. Lewis
was ready and anxious to pay off the lien upon his home,
where he had lived for upwards of thirty years and raised his
family. But while Lewis was prepared and making earnest
endeavors to pay the $200, which was all that remained un-
paid, and his agents seeking the payees, to make the payment —
while all the parties lived in Galesburg, except old Mr. Lewis,
and he lived only four miles out — while there were three news-
papers published in Galesburg — John B. Colton went to Knox-
ville, nine miles from Galesburg, five miles further awTay from
Lewis than Galesburg, where he and his family did their trad-
ing and business, and on the 15th of June, 1869, prepared and
caused to be published in a Knoxville paper, a notice of trus-
tee's sale of the eighty acres covered by the trust deed, on the
28th of that month. The notice recited the trust deed, the
notes, bearing date on the 23d of May, 1863, and stated that
the note for $218.52, bearing that date, and due in four years
from date, had been assigned to John B. Colton ; that it was
due and all unpaid; which John B. Colton knew at the time
was false, for he knew that the interest had been paid, and the
principal reduced to $200.
One tract of this land lies only half a mile from the city
limits of Galesburg, and the other somewhat farther. Lewis
was old and blind. There was no agreement in the deed ex-
pressly waiving personal notice, nor any expressly requiring
it. If the payment of the amount due was what was wanted,
they knew that personal notice to him of the sale would bring
it. If, on the other hand, the notice had been published in a
Galesburg paper, then it is more than likely some of the neigh-
bors and friends of the old man or his son would have seen it,
and the sale stopped.
This was evidently not a desirable result, on the part of the
managers of the scheme.
1871.] Flint v. Lewis. 305
Opinion of the Court.
Suffice it to say, that Lewis got no notice, and the very clay
his agents were seeking after the Coltons to pay the balance,
the trustee sold the farm of eighty acres to Stoddard, he bid-
ding the sum of $100 for each forty-acre tract, and under the
power, the trustee executed to him a deed.
This land was proven to have been worth $50 per acre,
making an aggregate of $4000.
But it turns out, according to the evidence, that John B.
Colton and Stoddard had been acting in concert in the matter
of the sale; that the former, not caring, under the circum-
stances, to take the fruits of his scheme to defraud this old
blind man out of his farm directly into his own hands, had,
between the time of advertising and the sale, made a transfer
of his interest in the note to Stoddard, and the latter seems to
have been troubled with a like uneasiness, and becomes sud-
denly seized with a desire to become rid of the title he had
acquired. He concludes that he would like to be the proprie-
tor of some real estate, as he says, in the city. Flint had
some lots which he had been using for a cow pasture, which
he traded with Stoddard for the Lewis farm; and on the 13th
of July, 1869, Stoddard and wife executed to Flint a quit-
claim deed of it. The consideration expressed was $1000.
We shall not stop to criticise the action of the trustee in
permitting or making the sale under the circumstances. The
right to relief rests upon the clear and solid ground of equit-
able jurisdiction over trusts, and to control all fraudulent
abuses of them, unless barred by the paramount claims of a
bona fide purchaser for valuable consideration, and without
notice.
This sale was made under the power contained in the trust
deed, in pursuance of a most clearly definable conspiracy be-
tween John B. Colton and Stoddard, to take undue advantage
of Lewis, and, by an abuse of the trust, to wrongfully deprive
him of his equity of redemption. It is one of those inequit-
able proceedings which a court of equity will readily undo,
20— 61st III.
306 Flint v. Lewis. [Sept. T.,
Opinion of the Court.
unless prevented by the position occupied by Flint, which
it is insisted is that of a bona fide purchaser without notice.
Unless the conveyance to Flint was a mere pretense to cre-
ate the color of a bona fide purchase, it is wholly unnatural
that he made the exchange without, first knowing where the
Lewis farm was situated, its general character and value.
The deed from the trustee to Stoddard recited the facts, and
among them the fact that Stoddard had become the purchaser
at the price of §100 for each forty-acre tract.
Flint is chargeable with notice of whatever that deed re-
cites. Scott v. Hoove, 3 Scam. 306.
That forty acres of improved land situate so near to the
limits of the city of Galesburg should have been sold for only
§100, and that any old resident should permit a cultivated farm
of eighty acres, upon which he had resided so long, to be sac-
rificed for the sum of §200, would be suggestive to any man
of ordinary judgment that there was some mistake, or some
overreaching in the transaction.
If Flint knew none of these things, it must have been be-
cause the conveyance to him was a sham, and he had no real
interest in it. But he is chargeable with notice of what is re-
cited in the deed from the trustee to Stoddard.
Old Mr. Lewis was then, and had been for more than thirty
years, in the open and visible possession of the land. That
possession was notice to all the world that he had some inter-
est in the land; and whoever bought it, while that possession
continued, took it subject to that interest, whatever it might
be. Dyer v. Martin et al. 4 Scam. 146; Brown v. Gaffney, 28
111. 150; Riley v. Quigley, 50 111. 304.
The facts of which Flint was chargeable with notice, and
the fact of Lewis' possession, were sufficient to put the former
upon inquiry, and his failure to make inquiry is equivalent to
notice. If he had gone to Lewis, the party in possession, and
inquired of him in respect to his interest in the lands, he would
have doubtless learned that it was that of one who held the
1871.] Hammers et al. v. Dole et ah 307
Syllabus.
equity of redemption, which had not been cut off by the pre-
tended and fraudulent sale tinder the trust deed.
It is objected that the decree contains the finding of a fact
not alleged in the bill, viz: that the complainant had sup-
posed, until a certain time, that the instrument he had given
was only a mortgage. It is true that there is no such allega-
tion in the bill, and the recital is improperly in the decree;
but that recital is not necessary to support the decree, as there
are others sufficient for that purpose. In such case we will
not reverse, for the introduction of a single, isolated recital,
not based upon a proper allegation, where there are others suf-
ficient to support the decree. The facts found in the decree
for its support are not as strongly stated against the defend-
ant as the evidence warrants: neither will we reverse for that
reason.
We are of opinion, upon the whole case, that the decree of
the court below should be affirmed.
Decree affirmed.
John Hammers et al.
v.
James H. Dole et al.
1. Chattel mortgage— foreclosure in chancery. Where there are sev-
eral successive liens and incumbrances on the same property, so that a
foreclosure, by sale in the ordinary way, could not be made without in-
jury to the adverse claimants, a court of equity may properly be called
upon to determine and adjust the rights and equities of the parties.
2. Same — void mortgage. The principle would remain the same even
if the bill alleged all the mortgages and liens to be void except those of
the complainants, since that would compel the court to determine as to
the different liens. And if, on the hearing, such an allegation should
prove true, it would be inequitable then to dismiss the bill, involve the
complainants in costs, and remit them to their remedy at law.
308 Hammers et al. v. Dole et al. [Sept. T.,
Statement of the case.
3. Acknowledgment — officer interested. A chattel mortgage acknowl-
edged before one of the mortgagees who is a justice of the peace, is void
as to other mortgage creditors, for it is against the policy of the law that
auy officer should perform either a ministerial or a. judicial act in his own
behalf. It would be no answer to this objection that such mortgagee was
the only justice in the township.
4. Same — officer wanting. Where there is no such officer as the statute
prescribes for taking the acknowledgment of a chattel mortgage, or if bo
be incompetent, the parties will be remitted to their rights at common law,
under which all sales of personal property, unaccompanied by possession
in the vendee, are absolutely void. Our statute has only changed this rule
so as to permit the mortgagor to retain possession where the mortgage,
properly acknowledged and recorded, provides for it.
Appeal from the Circuit Court of Woodford county; the
Hon. S. L. Richmond, Judge, presiding.
This was a bill in chancery, filed in May, 1869, by James
H. Dole and others, alleging the following facts: On the 2d
day of July, 1868, one Joel Wheeler, since deceased, being
then indebted to Salzman & French, made certain notes there-
for and executed a chattel mortgage by way of security. This
mortgage was acknowledged on the same day before Henry
Salzman, a justice of the peace of the proper township, and
one of the said mortgagees. The notes were subsequently
assigned to the appellants herein.
Afterwards, on the 28th of September, 1868, Wheeler being
then indebted to James H. Dole and others, executed a note to
them for the amount and secured it by another mortgage on
the same chattel property. Both mortgages were recorded at
the same time, that of Salzman & French being No. 2189, and
the other, Xo. 2190.
One of the Salzman & French notes became due April 1st,
1869, and the other on the 2d day of July following. The
Dole note and mortgage were not due until September 28th,
1869. On the 8th of May, 1869, appellants took possession
of the mortgaged property and advertised it for sale under
their mortgage. This bill was filed to enjoin that sale, alleg-
ing the Salzman & French mortgage to be void, and praying
1871.] Hammers et al. v. Dole et al. 309
Opinion of the Court.
that appellees might be given a prior and first lien on the
property, and on the final hearing such a decree was entered.
The appeal was brought to reverse that decree.
Messrs. Harper & Cassell, and Mr. S. D. Puterbaugh,
for the appellants.
Messrs. Bangs & Shaw, for the appellees.
Mr. Justice Thornton delivered the opinion of the Court:
Appellants insist upon a reversal of the decree for two rea-
sons :
Mrst — A court of equity will not entertain a bill when it
shows full and adequate remedy at law.
Second — A court of equity will not sustain a bill to fore-
close a chattel mortgage unless there are existing equities to
be determined, liens and incumbrances to be adjusted, and
proceeds to be distributed.
The property in controversy is of the value of over $1000,
and the bill alleges that appellants have a mortgage upon the
property. There are, then, successive liens and incumbrances,
and if all are valid, there would be a trust fund to be distrib-
uted among the several claimants. The court was called up-
on to determine and adjust the rights and equities of the par-
ties. A foreclosure, by sale in the ordinary way, could not
have been made without injury to the adverse claimants. \Ve
think the right to maintain the bill is fully settled by the case
ofDupuyw Gibson, 36 111. 198.
But it is contended that^as the bill denies the validity of
the mortgage of appellants, there can be no investigation of
the matter in chancery. There is no force in the objection.
The bill alleges the existence of another mortgage — an ad-
verse claim — and then charges that the same is void. If it
is not void, the holders of it must share in the fund according
to the equities of the parties. The allegations in the bill neces-
sarily compel the court to determine as to the different liens.
310 Hammers d al v. Dole et al. [Sept. T.,
Opinion of the Court.
lt\ upon the hearing, it should be found that the mortgage of
appellants is void, it would be folly and inequitable to dis-
miss the bill, involve the complainants in costs, and remit
them to their remedy at law. Equity isrthe law of reason
and can not be chargeable with so great an absurdity.
The mortgage of appellants was void as to appellees. It
was acknowledged before one of the mortgagees who was a
justice of the peace. This is against the policy of the law.
An officer should not be permitted to perform either a minis-
terial or a judicial act in his own behalf. It would be an
anomaly in our jurisprudence to permit a judge to render a
judgment in his own favor. It might lead to greviouswTong.
No officer should be subjected to such temptation. An ac-
knowledgment of the execution of an instrument in-writing,
when required by lawr, should be made before an officer wholly
disinterested. This court has decided that an officer can not
execute process in his own favor. Snydaclcer v. Brosse, 51 111.
357. The reason for this prohibition will apply with equal
force to the taking of an acknowledgment.
The fact, asserted, that the mortgagee was the only justice
in the township, is no answer to the objection. At common
law all sales of personal property, unaccompanied by posses-
sion in the vendee, are absolutely void. The statute has only
changed the common law so as to permit the mortgagor to
retain possession where the mortgage, properly acknowledged
and recorded, provides for it. If there was no officer to take
the acknowledgment, the parties would be remitted to their
rights as at common law. If the justice was incompetent to
act, the same result follows. Frank v. Miner, 50 111. 444.
In this case there is no proof of fraud or bad faith on the
part of appellees. They are bona fide mortgagees, and are
entitled to the relief prayed for.
The decree is affirmed.
Decree affirmed.
1871.] Vickery v. McClellan et al. 311
Syllabus. Opinion of the Court.
Joseph Vickery
v.
"William McClellan et al*
1. Attorney — authority lo discharge judgment. Where desperate claims
are put into the hands of an attorney for collection, with information that
the defendant can not pay anything and that the plaintiffs had offered to
take sixty cents on the dollar, and with instructions to take the claims and
do the best he can with them, but giving him no specific directions, such
instructions fully authorize the attorney, after judgment, and execution
returned no property found, to settle the claims and discharge the judg-
ment upon the receipt of fifty cents on the dollar.
2. Settlement — ratification unnecessary. Although an attorn eyy by
virtue of his general character as such, lias no power to discharge his cli-
ent's judgment by receiving a less amount or anything but money in sat-
isfaction thereof, yet, where he has a special authority so to do, and does
it, no subsequent ratification is necessary.
3. Judgment — how discharged. Where an attorney has authority to
discharge judgments for less than the full amount, and in doing so makes
an assignment thereof without recourse, to a third party, entering on the
docket receipts for the amount paid as per assignment, instead of an en-
try of discharge, his clients can not complain, for the- acceptance of the
money by authority is a satisfaction of the judgments as to them.
Appeal from the Circuit Court of Bureau county; the
Hon. Edwin S. Leland, Judge, presiding.
Messrs. Shaw & Crawford, for the appellants.
Mr. George AY. Pleasants, for the appellees.
Mr. Justice Sheldon delivered the opinion of the Court :
The appellants respectively recovered judgments amount-
ing in all to $2552.16 against the appellee, McClellan. in the
Henry county circuit court at the October term, 1862, and
sued out executions thereon within a year, which were duly
returned wholly unsatisfied.
* The cases of IsaacVickery v. McClellan et al, and Harvey Vickery against the same,
are considered in this opinion.
312 Vickery v. McClellan et at. [Sept. T.,
Opinion of the Court.
Some time in the year I860, while the lien of said judg-
ments was in full force, Jerome B. Carpenter, as the attorney
of appellants, for fifty per cent of the face of the judgments
paid by one Morse, with the consent and in the interest of the
defendant, executed to said Morse what purported to be as-
signments without recourse of these judgments, and entered
upon the judgment docket receipts for the amount thereof, as
per assignment to John Morse, and afterwards absconded with
all the money. McClellan, in the summer of 1866, repaid to
Morse the amount which he had paid to Carpenter, without
interest, but to his full satisfaction.
A few months thereafter, November 10, 1866, appellants
filed their bills to declare the liens of said judgments in full
force, to cancel the said entries in the judgment docket and to
obtain executions.
The question in the case is, whether or not this disposition
of the judgments by Carpenter was authorized or ratified by
his clients, the appellants.
An attorney at law, by virtue of his general character as
such, has no power to discharge his client's judgment by re-
ceiving a less amount or anything but money in satisfaction.
Nolan v. Jackson, 16 111. 273 ; Miller v. Edmonston, 8 Blackf.
292 ; Wilson v. Wadleigh, 36 Maine, 499 ; Pennison v. Pcdchin,
5 Verm. 352.
AVas there any special authority in this case?
The appellants were laborers, residing at remote points in
the Wisconsin pineries, one of them spending a portion of the
time in Maine.
On the 19th day of August, 1862, they placed the notes,
upon which the judgments were obtained, in the hands of
Carpenter for collection. Morse was present at the time. He
testifies that they told Carpenter that McClellan could not pay
anything ; that they had offered to take sixty cents on the dol-
lar ; and that they told Carpenter to take the notes and do the
best he could with them, not giving him any specific direc-
tions.
1871.] Vickery v. McClellan et al. 313
Opinion of the Court.
The notes were long past due.
The receipts Carpenter gave for the notes expressed that
they were to be collected if possible, by him, and no fees to
be charged if not collected ; if collected, twenty-five per cent
fees to be charged on what was collected.
It is evident. that these were desperate claims against an
insolvent debtor; that the appellants did not expect collection
in full ; that they regarded it as doubtful whether anything
could be collected, and were unwilling to risk anything in
efforts to that end.
In view of the circumstances, and the statements of appel-
lants to Carpenter in the presence of Morse, that McClellan
could not pay anything, that they had offered to take sixty
cents on the dollar, and the direction to Carpenter to take the
notes and do the best he could with them, we think Morse
and McClellan were fairly entitled to believe that Carpenter
was invested with a discretionary power to accept less than
the amount of the judgments in their discharge, and that they
were justified in acting on such belief and making the com-
promise they did, as a binding one on the appellants.
After the recovery of the judgments in October, 1862. and
the return of executions wholly unsatisfied, the matter rested
in that condition until October 7, 1864, when Carpenter wrote
to the appellants that McClellan had just offered him fifty
cents on the dollar, and requested them to write at once if
they would take it, saying he thought it was about the best
thing they could do. They replied October 15, 1864, through
Joseph Vickery, that they were willing to meet McClellan on
any reasonable terms, but the writer thought fifty cents on the
dollar as little as McClellai/could expect to get off with after
paying Carpenter's fees and costs; said that he would submit
it to his brothers as they were more interested ; wanted Car-
penter to get all he could ; and thought if they could realize
fifty cents on the dollar, and McClellan pay all costs and attor-
ney's fees, it would be satisfactory.
314
Vickery v. McClellan et al. [Sept. T.,
Opinion of the Court.
A subsequent letter from Joseph Vickery, of November
28, 1864, is of similar tenor.
These letters can hardly be regarded as a revocation or lim-
itation of the authority implied in the direction given at the
time of leaving the notes, to do the best Carpenter could with
them ; and if they could, it not appearing that Morse and Mc-
Clellan had notice of it, they would not be bound thereby.
The letters purport rather to express the writers' opinions and
wishes and to give advice, than to impose any limitation of
authority. It appears, from Vickery's last letter, that he was
laboring under a misapprehension as to the amount of Carpen-
ter's fees, as he says, to take fifty cents on the dollar and pay
Carpenter half of that, as he is informed the agreement was,
would leave them but a small sum.
Carpenter, in his reply of December 7, 1864, corrects him
as to the agreement for fees, and says he will do the best he can
as if it were his own.
In Vickery's letter of October 15, 1864, he says he wants
Carpenter to get all he can. This would seem to imply an
authority to take fifty cents on the dollar if he could not get
any more. This letter, read in connection with Vickery's let-
ter of July 12, 1865, acknowledging the receipt of Carpenter's
letter giving information of the settlement with McClellan
for fifty cents on the dollar, and directing how to remit the
money, wherein Vickery says, "I suppose it was the best you
could do," seems quite clearly to manifest that it was the
understanding of the authority given to Carpenter, to compro-
mise the judgments upon the best terms he could.
We have no reason to question, from the evidence, that the
terms of the settlement were as favorable to the appellants as
could have been got.
But had there been no previous authority to make this com-
promise, there is evidence of a subsequent ratification of it.
July 7th, 1865, Carpenter writes to the Vickerys, informing
them that he had at last concluded to settle the McClellan
matter for fifty cents on the dollar ; that he got only a part of
1871.] Yickery v. McClellan et al. 315
Opinion of the Court.
the money down, but he got it on short time with perfect se-
curity ; that in thirty days he should have money to send them.
There are subsequent letters from the appellants, which are
admitted to amount to a full ratification but for the suppres-
sion of material facts claimed to have been made by Carpenter.
One material fact said to have been suppressed by Carpen-
ter is, that he received from Morse $708.31 on the 5th of
June, 1865. It is true, Carpenter does not disclose that fact
to his clients, but if he had done so we do not think it a cir-
cumstance which would have affected the determination of the
appellants in their ratification of the settlement. The money
was paid June 5th, and Morse's note at sixty days taken for
the residue. July 7th Carpenter writes, saying he gets only
a part down ; that in thirty days he should have money to
send them ; at that time Morse's note would mature. The
defendants were scattered and entitled severally to the money.
To wait, in order to remit the whole at one time, might have
been a matter of convenience. Carpenter's letter does give
appellants to understand that he had got a part down, but the
omitting to send that or to inform them of its amount does
not seem to have excited any uneasiness or suspicions as to
the honesty or responsibility of Carpenter, and information of
the amount received June 5th, we have no reason to think,
would have done so.
The other suppression of a material fact is claimed in this:
That Carpenter, in a communication to Morse, just previous
to the receipt of the money from him and his note, says that,
where a man has money to invest, he can collect the whole
claim of McClellan, and details circumstances in regard to
McClellan's property. And this information Carpenter did
not communicate to his clients. But in the same communi-
cation he states that neither the Vickerys nor himself could
make the claim out of McClellan because they had not the
money to do so.
Mr. Crawford seems to have made an especial examination of
the affairs of McClellan with the view of making an offer to
316 Johnston & Deverill v. Salisbury. [Sept. T.,
Syllabus.
purchase the judgments, and the very best offer he would
make was fifty cents on the dollar, half cash, and the balance
in sixty and ninety days, without interest.
The appellants appear, from the evidence, to have been very
well acquainted with the facts in relation to McClellan's pe-
cuniary condition.
Joseph Vickery, in his letter of November 28, remarks that
he thinks the whole claim can be realized; thinks McClellan
has property enough to pay, and should be made to pay, but is
willing to take fifty cents on the dollar if they can get it free
of all costs.
\Ye do not think there has been any such withholding of
material facts as to do away with the effect of a valid ratifica-
tion, were it necessary to resort to that in order to sustain the
transaction in question.
Much has been said upon a want of authority to make an
assignment of the judgments, which it is unnecessary to con-
sider, as the acceptance of the money, if authorized, was a sat-
isfaction of the judgments.
The decree of the court below dismissing the bill must be
affirmed.
Decree affirmed.
Johnston & Deverill
v.
David Salisbury.
Assumpsit — whether it will lie. In an action of assumpsit, the plaintiff
sought to recover the value of a horse, buggy and harness, delivered to
the defendants upon a contract under seal by which they agreed, upon
certain conditions, to convey to the plaintiff a certain lot of ground. The
plaintiff based his action upon the theory that defendants had refused to
perform their contract: Held, that, in order to maintain assumpsit, it
"would be necessary to prove the sale of the horse, buggy and harness, by
1871.] Johnston & Deverill v. Salisbury. 317
Opinion of the Court.
the defendants, or their conversion in some way into money or money's
worth, and in the absence of such proof the plaintiff should resort to cov-
enant on the sealed instrument to recover his damages, or, treating the
contract as rescinded, trover or replevin for the property, after demand
made.
Appeal from the Circuit Court of Cook county; the Hon.
John G. Rogers, Judge, presiding.
Mr. Consider H. Willett and Mr. J. B. Crane, for the
appellants.
Mr. B. M. Munn, for the appellee.
Mr. Chief Justice Lawrence delivered the opinion of
the Court :
The plaintiff in this case has recovered a verdict and judg-
ment for the value of a horse, buggy and harness, delivered
to the defendants upon a contract under seal by which they
agreed, upon certain conditions, to convey to the plaintiff a
lot in Chicago. The action is assumpsit, and is based upon
the theory that the defendants have refused to perform their
contract.
"Without expressing any opinion on the sufficiency of the
evidence to sustain an action of any character, Ave are obliged
to say that assumpsit will not lie. The sale of the horse,
buggy and harness, or their conversion in some way into
money or money's worth, would be the only ground upon
which assumpsit would lie. There is no proof of such a sale,
and the plaintiff must bring covenant on the sealed instrument
to recover his damages, or, treating the contract as rescinded,
trover or replevin for the property after demand made. The
case is like Creel v. Kirknam, 47 111. 349, and we can only
repeat here what was said in that case, that the objection, al-
though technical, is one which we must recognize as valid so
long as the distinctions between the various common law ac-
tions are maintained, and it is not for us to abolish them.
Judgment reversed and cause remanded.
Judgment reversed.
18 Foulk v. Eckert. [Sept. T.
Svllubus. Statement of the case.
John Foulk
v.
William Eckert.
1. Evidence — impencJiing a witness. A witness called to impeach the
general character of another for truth and veracity, should be asked if he
is acquainted with the general character of the witness, in his neighbor-
hood, for truth and veracity, and he must answer in the affirmative before
lie can testify as to his character as to truth; but although he maybe
asked as to his character before he has stated he knows it, there can arise
no harm when he answers he does not know how the neighbors regard
the witness in reference to his truthfulness.
2. In such a case, it is improper for the witness to volunteer testi-
mony unfavorable to the character of the witness sought to be impeached,
but that will not reverse as it was not called for, and the adverse party
did not move to exclude it from the jury; but had it been asked, and had
the court failed to exclude the evidence, it would have been error.
3. Fraud — rescission of contract — notice. Where a person sells an arti-
cle of personal property to another, and the evidence tends to prove there
were false and fraudulent representations as to the condition of the prop-
erty, and it is not seen by the purchaser until after the purchase, when he
finds it entirely different from what was represented, he would not, be re-
quired to give the vendor notice that he rescinded the contract, and it,
would be error for the court *,o instruct the jury that he could make no
defense in a suit for the purchase price without he gave notice in a rea-
sonable time of his refusal to receive the property.
Appeal from the Circuit Court of LaSalle county; the
Hon. Edwin S. Leland, Judge, presiding.
This was an action brought by John Foulk, before a justice
of the peace of LaSalle county, against William Eckert, to
recover the price of a heading machine. On the trial before
the justice of the peace, plaintiff recovered a judgment against
defendant for $45. An appeal was taken to the circuit court
of LaSalle county.
On a trial in that court by a jury, it appeared that plaintiff,
in February, 1867, sold to defendant a header and reaper for
the sum of §55, on which defendant paid §10. The machine
1871 .] Foulk v. Eckeet. 319
Opinion of the Court.
was not present, and when defendant came to see it he claimed
that it was entirely different from what plaintiff had repre-
sented it at the time of the sale, and claimed that plaintiff had
made false and fraudulent representations as to the condition
of the machine, but he seems not to have given notice of his
refusal to take the machine. On the trial he relied on these
facts as a defense. He also filed an account as a set-off. The
jury found a verdict in his favor for $12. Plaintiff entered a
motion for a new trial which was overruled by the court, and
the record is brought here on appeal.
Mr. E. W. Dewey, for the appellant.
Messrs. Stipp, Brown & Shepherd, for the appellee.
Mr. Justice Walker delivered the opinion of the Court :
It is first insisted that the court below erred in the admis-
sion of evidence on the part of appellee. This question was
asked: "Is it not a fact that Mr. Foulk is not a reliable
man, by those who know him well, as to his word?" This
question was clearly objectionable inasmuch as it does not
appear that the witness had any knowledge as to the general
character of Foulk for truth and veracity. It is a rule of evi-
dence that the witness should be asked, first, whether he is
acquainted with the general character of the person intended
to be impeached, for truth and veracity in his neighborhood,
and the impeaching witness must state that he knows what
character he bears before he can be asked as to what that
character is. This rule is so elementary that it would be useless
to refer to authorities in its support. It is presumed that all
practicing lawyers know it to be the rule. But we can see,
from the record in this case, from the answer given, that the
question asked did no harm. The witness answered that he
could not say what those who knew him considered his character
as to his word. This was responsive to the question and could
not, in. the slightest degree, prejudice the plaintiffs case.
3*20 Foulk v. Eckert. [Sept. T.,
Opinion of the Court.
But the witness then volunteered to give his opinion, which
was unfavorable to his character for veracity. This was im-
proper ; but not being called for by appellee, the judgment
should not be reversed for that reason. If appellant desired
to have it excluded from the jury, he should have moved the
court to so instruct the jury. Had he asked the court to ex-
clude it and his application had been refused, it Avould have
been error. But failing to ask that his volunteer answer
should be taken from the consideration of the jury, he has no
right to complain of the evidence for the first time in this
court.
It is next urged that the court erred in refusing to give
appellant's ninth instruction, which is this :
"If the jury believe, from the evidence, that the defendant,
as soon as he saw the machine, determined to rescind his con-
tract of purchase, it was his duty to give the plaintiff a rea-
sonable notice of his intention so to do; and unless the jury
believe, from the evidence, that the defendant gave the plain-
tiff a reasonable notice that he would not take the header in
question, then they will find for the plaintiff and assess his
damages accordingly, and the jurors are the judges, from all
the evidence and circumstances of the case, as to what consti-
tutes reasonable notice."
It is contended by appellant that, appellee having failed
within a reasonable time to give notice that he repudiated the
contract, that even if the property was not as appellant had
represented it, appellee had waived all right to object to going
on and carrying out the agreement. On the other hand it is
insisted that, inasmuch as the representations as to the condi-
tion of the machine were untrue, it amounted to a fraud, and
that appellee was bound to perform no act in reference to the
property, but might simply refuse to receive it or to pay the
contract price.
Had there been fraudulent representations made as to the
property and it had been delivered to appellee, or he had taken
1871 .] Foulk v. Eckert. 321
Opinion of the Court.
possession, then it is clear, from the authorities, that, on dis-
covering the fraud, he should have offered to restore the prop-
erty to appellant before he could rescind the contract. Or,
had there been various articles to be delivered by the vendor
at different times, and he had been guilty of fraud, it would
have been necessary for the vendee, on discovering the fraud,
to notify the vendor that he elected to rescind the contract,
and not to wait for the period to arrive when the various ar-
ticles were to be delivered. And in case of rescission by rea-
son of the fraud of one of the parties, and a notice is required,
it must be given in a reasonable time and ordinary diligence
must be employed to detect the fraud.
In this case, however, at the time the agreement to pur-
chase was entered into, appellee had not seen the machine, it
was not present, and he relied alone upon the vendor's rep-
resentations as to its condition. It was never delivered to
appellee, nor did it ever come to his possession. After the
agreement was made he examined it, and claims that it was
almost worthless and entirely different from what it had been
represented by appellant, and that there was such a fraud as
excused him from taking the machine. The evidence is such
as to have justified and even required the court, if asked, to
submit the question of fraudulent representations to the jury
under proper instructions. If, then, there was fraud by the
appellant, he must have known the fact, and knowing he had
perpetrated a fraud he knew that he thereby acquired no legal
rights under the agreement. He knew that the appellee was
not bound to receive and pay for the property, and bence had
no right to insist upon the notice. Had he been in doubt as
to whether appellee would go on with the contract notwith-
standing the false representations, if any were made, he should
have tendered the property, and then, and not till then, was
appellee bound to notify him that he refused to receive the
property.
It would, then, have been erroneous to give this instruction.
It would have excluded from the consideration of the jury all
21— 61st III.
322 III. Land & Loan Co. v. McCormick et al. [Sept. T.j
Syllabus. Statement of the case.
question of fraud. It was for them to determine whether there
was fraud in representing the condition of the property, and
if so, then a notice from appellee that he would not take it
was unnecessary. The instruction would have wholly ex-
cluded this question.
A careful consideration of the evidence fails to show that
the verdict is against the evidence. On the contrary, it sup-
ports the finding.
Ko error being perceived in the record, the judgment of the
court below is affirmed.
Judgment affirmed.
The Illinois Land and Loan Co., Impleaded, etc.,
V.
Cyrus H. McCormick et al.
1. Service, by special deputy. The authority of a special deputy sheriff
to serve a summons, under the act of March 25, 1869, must be by written
appointment of the sheriff.
2. Amendment, of decree at subsequent term. Upon the rendering of a
final decree in a chancery suit, one of the defendants took an appeal there-
from to this court. After the record was filed in this court, and errors as-
signed thereon, at the instance of appellees, complainants below, the decree
was amended at a subsequent term to the one at which it was rendered, so
as to exclude appellant from its force: Held, such practice was irregular,
and should Jiot have been permitted, and this court could only decide on
the original record.
Appeal from the Circuit Court of Cook county.
This was a bill in chancery, filed by Cyrus H. McCormick
and others against The Illinois Land and Loan Company and
Mary Jane Hart and others, to foreclose a mortgage made by
the husband of the said Mary Jane Hart, on lands in Cook
county.
1871.] III. Land & Loan Co. v. McCormtck et al. 323
Statement of the case.
The bill alleges default in payment, the decease of the mort-
gagor, heirship of all the defendants except the Illinois Land
and Loan Company, and makes said company a party defend-
ant upon the allegation that it has, or claims, some interest in
the premises under a tax title.
Summons issued to the sheriff of Cook county, and was re-
turned served by a special deputy. Under that service, de-
fault was entered against the defendants, including the Illinois
Land and Loan Company, and a decree in favor of the com-
plainants for the amount claimed to be due on the mortgage,
requiring the defendants to pay the amount within a certain
time, and in case of default that the land be sold by the mas-
ter in chancery at public auction.
From this decree an appeal was prayed by The Illinois Land
and Loan Company to this court. After the record had been
brought here and errors assigned, one of which was, that the
court erred in decreeing that the defendants, The Illinois
Land and Loan Company, amongst others, should pay the
amount found due to complainants, when there was no ailega-
gation in the bill of the indebtedness of said company to com-
plainants, and none upon which such a decree could be founded,
the solicitor of appellees, complainants in the court below,
went into the circuit court and amended the decree by except-
ing the Illinois Land and Loan Company from the require-
ment to pay the moneys mentioned in said decree.
This action was had at the September term, 1871, of the
circuit court of Cook county, several terms of said court hav-
ing elapsed after the entering of the final decree, and after the
cause was pending and docketed in this court, and errors had
been assigned, as aforesaid.
The appellees, on motion, filed in this court a transcript of
the amended record of the court below.
Mr. George Scoville, for the appellant.
Messrs. Jewett, Jackson & Small, for the appellees.
Dixon v. Dixon. [Sept. T.,
Syllabus.
Per Curiam: Appellant and other defendants in the court
below were served with summons by a special deputy.
The statute, which authorizes the appointment of a special
deputy, requires that the appointment shall be indorsed upon
or attached to the summons, and shall be signed by the sheriff.
Gross, (1869) 718. The law clearly intends a written appoint-
ment.
The record before us shows that the sheriff did not comply
with the statute, and the service by the deputy was without
proper authority.
After the record was filed in this court, and errors assigned,
the decree was amended in the court below, at a term subse-
quent to the one at which it was rendered, so as to exclude
appellant from its force.
This practice was irregular, and should not have been per-
mitted ; and, in this instance, we must decide upon the origi-
nal record.
The decree is reversed and the cause remanded.
Decree reversed.
John R. Dixon
v.
Lizzie Dixon.
1. Inferior courts in cities — of the territorial jurisdiction of tlie court
of common pleas of the city of Amboy. The court of common pleas of the
city of Amboy, established by the act of March 11th, 1869, has no power to
send its process beyond the territorial limits of the city.
2. Practice in chancery. The question as to the sufficiency of a plea,
in chancery, should not be raised by demurrer, but the plea should be set
down for argument.
Writ of Error to the Court of Common Pleas of the city
of Amboy; the Hon. Alonzo Kinyon, Judge, presiding.
1S71 .] Dixon v. Dixon. 325
Statement of the case.
This was a bill for a divorce, filed September 13, 1870, in
the court of common pleas of the city of Amboy, in Lee coun-
ty, by Lizzie Dixon against John R. Dixon.
The defendant filed the following plea to the jurisdiction of
the court :
"State of Illinois, Lee county, city of Amboy, ss. In the
court of common pleas of the city of Amboy, September 10,
A. D. 1870, Lizzie Dixon v. John R. Dixon. In chancery. The
plea of John R. Dixon, defendant, to the bill of complaint of
Lizzie Dixon, complainant. This defendant, by protestation,
not confessing or acknowledging all or any of the matters and
things in said complainant's bill of complaint mentioned or
contained, to be true in such sort, manner and form as the
same are therein set forth and alleged, for the plea to the
whole of said bill says that the court here ought not to take,
nor will take, cognizance of the cause aforesaid because he, the
said John R. Dixon, says thsft the said city of Amboy, where
the complainant by her said bill shows that she resides, is sit-
uated in the county of Lee and State of Illinois; that this
defendant, at the time of the commencement of this suit, did
not, has not since, does not now, and never did reside in the
city of Amboy, but is, and at the time of the commencement
of said cause, and at the time of the service of process herein,
a resident in the city of Dixon, in said Lee county, and that
service of process herein was actually had on him at said city
of Dixon and outside of said city of Amboy ; that within the
said Lee county there is, and at the time of the exhibition of
said bill, and long before tha> time, there was, a circuit court
of said Lee county having jurisdiction of matters of the sort
and nature in said bill alleged, and having jurisdiction over
the person of said complainant and this defendant, and at the
time of the exhibition of said bill all said several matters
therein contained were, and of right ought to be, pleaded and
pleadable within the said circuit court of said Lee countv and
326 Dixon v. Dixon. [Sept. T.,
Opinion of the Court.
not in this court; all which matters and things this defend-
ant is ready to verify, wherefore since the said circuit court of
Lee county has exclusive original jurisdiction of the said cause,
the said defendant prays judgment if the said court of com-
mon pleas, now here holden, will, or ought to have, further
cognizance of the cause aforesaid, and prays the judgment of
this honorable court whether he ought further to answer the
said bill, and prays to be hence dismissed with his reasonable
costs in this behalf wrongfully sustained."
This plea was verified by the defendant's affidavit.
The complainant filed a general demurrer to the plea which
the court sustained. The default of the defendant was there-
upon entered and the cause set for a hearing ex parte in open
court.
Upon a hearing, the court, on October 1, 1870, rendered a
decree dissolving the bands of matrimony theretofore existing
between the complainant and the defendant.
The defendant brings the record to this court.
Messrs. Eustace, Barge & Dixon, for the plaintiff in
error.
Mr. Vm. E. Ives, for the defendant in error.
Per Curiam : The plea to the jurisdiction in this case pre-
sented the question whether the court of common pleas of the
city of Amboy has power to send its process beyond the terri-
torial limits of the city. This question is decided by the cases
of People v. Evans, 18 111. 361, and Covillv. P/ty, 26 ib. 433.
The plea was good, and the court should have so held. The
question as to the sufficiency of the plea was raised by demur-
rer. The proper mode in chancery proceedings is, to set the
plea down for argument.
The decree is reversed and the cause remanded.
Decree reversed.
1871.] Bellows v. Wheeler. 327
Syllabus. Opinion of the Court.
William H. Bellows
v.
Andrew P. Wheeler.
Iu this case, no error appearing in the record, the judgment is affirmed.
"Writ of Error to the Circuit Court of Kankakee county ;
the Hon. Charles H. Wood, Judge, presiding.
Mr. C. A. Lake, for the plaintiif in error.
Mr. Stephen R. Moore, for the defendant in error.
Mr. Justice Walker delivered the opinion of the Court :
This was an action on the case, brought by defendant in
error in the Kankakee circuit court, against plaintiff in error,
to recover for a slander alleged to have been spoken by him
of defendant in error. A trial was had before the court and a
jury, resulting in a verdict and judgment in favor of plain-
tiff, and defendant below has brought the record to this court
on error, and asks a reversal on two grounds :
First — For the admission of improper evidence.
Second — Because of an alleged variance between the declar-
ation and the proof.
It is urged that the court erred in admitting in evidence a
board which had been posted up in the neighborhood of the
parties, and upon which there was written libelous matter
similar to that alleged in the/declaration to have been spoken
concerning defendant in error. We have carefully examined
the record and fail to find that the board was admitted in evi-
dence, or read to the jury. Counsel has failed to refer us to
the portion of the bill of exceptions which shows that it was
admitted, and being unable to find any such evidence was
admitted, we conclude counsel is laboring under some mis-
apprehension as to the grounds of this objection.
328 Badger v. Kerber. [Sept. T.,
S\ilabus. Statement of the case.
As to the alleged variance, we fail to find any variance be-
tween the proof and the declaration. In the second count, it
is averred that plaintiff in error spoke these words : "I
know Wheeler killed the horse." On turning to the record
we find that Chronister and Chappell both testified that plain-
tiff in error spoke these precise words concerning defendant
in error. Here are two witnesses who testify to the identical
words laid in the second count. This is full and ample proof
of the slanderous charge, and fully makes out the case.
Neither of the objections being well taken, and no error being
perceived in the record, the judgment of the court below must
be affirmed.
Judgment affirmed.
Alpheus C. Badger
v.
Henry Kerber.
Contract — performance — withholding certificate. Where a party con-
tracts to furnish stone to erect a building, with reference to stone from a par-
ticular quarry to be used, and the superintendent selected by the parties, and
upon whose certificate payment was to be made, recommends it, and the coil-
tractor uses it, and receives certificates after using it on a part of the build-
ing, the superintendent can not, capriciously or fraudulently, refuse to give
the contractor a certificate that he has completed his contract, on the pre-
text that the stone used was not of the proper kind, so as to deprive the
contractor of the price he was to receive for furnishing the stone for the
building.
Appeal from the Circuit Court of Cook county; the Hon.
John G. Rogers, Judge, presiding.
This was an action of assumpsit, brought by Henry Kerber,
in the circuit court of Cook county, against Alpheus C.
1871.] Badger v. Kerber. 329
Opinion of the Court.
Badger. The suit was brought to recover the contract price
for the cut stone used in building defendant's dwelling house.
The stone was white and clear when used, but, by exposure to
the weather, small particles of iron which it contained oxid-
ized and colored the stone, and defendant refused to pay the
last installment on the contract.
A trial was had by the court and a jury, when a verdict
was found for $1298.89 in favor of plaintiff. A motion for a
new trial was entered, but overruled by the court, and a judg-
ment was rendered on the verdict, from which plaintiff prose-
cutes this appeal.
Mr. Gwynn Garnett, for the appellant.
Messrs. Bunyan, Avery, Loomis & Comstock, for the
appellee.
Mr. Justice Thornton delivered the opinion of the Court :
There are some minor questions to be disposed of before a
discussion of the principal question.
It is assumed that there was error in the computation of in-
terest upon the amount due for the work performed, and that
therefore the verdict is excessive.
There was evidence to prove a fulfillment of the contract,
according to its terms. Of its weight, and the credibility of
witnesses, the jury were the proper judges. If the jury be-
lieved that appellee completed the contract at the time stipu-
lated, then there was sufficient time for the interest computed
to have accrued. /r
The next objection is, that the verdict was uncertain. In
the original record, as filed in this court, the verdict was copied
as follows: " We, the jury, find the plaintiff in the amount/
etc. The omission was supplied by an additional transcript
filed, in which the verdict is strictly formal. It is as follows :
"We, the jury, find for the plaintiff the amount of $1298.89."
This disposes of that objection.
330 Badger v. Kerber. [Sept. T.,
Opinion of the Court.
Appellant next urges that there was no evidence to sustain
the verdict.
The contract provided that the material used and the work
done should be paid for upon the certificate of the superin-
tendent, who was selected by the parties and was named in the
written agreement. Stone was to be furnished and the work
completed to the satisfaction of the superintendent.
The kind of stone contracted for was used, and there is no
complaint of the character of the work. There was some dis-
coloration of the stone after it was placed in the building, and
for this reason only the superintendent refused to give a cer-
tificate for the amount sued for.
There is evidence in the record that the contractor bid with
reference to the identical stone used, and that it was recom-
mended by the superintendent. He had a sample of it in his
office at the time of the contract, and had also given certifi-
cates for more than half of the contract price, as the work
progressed.
One of the witnesses testified that there were fine particles
of iron in the stone, which caused it to rust, and that they
could be discovered only by means of a microscope.
The provision in the contract in regard to the stone is as
follows : "The contractor must furnish a first rate quality of
stone, in every particular sound, and of uniform color for the
light colored Cleveland sand stone, or the Columbia stone."
The Columbia stone was used. Its soundness and quality are
not questioned. The contractor based his bid upon its use,
and the superintendent not only recommended it, but had used
it in another building during the previous year.
The refusal to give the certificate, under the circumstances,
was bad faith in the superintendent. The contractor had fully
complied, and was entitled to the value of his materials and
labor, according to the price agreed upon.
The modifications of appellant's instructions were propel!
They substantially informed the jury that the superintendent
must act in good faith in his relations to the parties, and that
1871.] Yennum v. Yennum. 331
Syllabus.
if he refused to deliver a certificate, in bad faith and fraudu-
lently, then the contractor must recover upon performance.
Performance by him, as well as the fraudulent conduct of
the superintendent, were fairly submitted to the jury, accom-
panied with proper instructions. They have determined these
matters from the evidence, and we shall not disturb the finding.
The superintendent should have exercised his power with
reasonable discretion, and not capriciously.
H he acted fraudulently, and ought to have been satisfied
with the work and material, and so the jury have found, and
rightly, then the judgment should not be reversed. Baker v.
Jones, 2 Car. & Kir. 742; Mills v. Weeks, 21 111. 561; McAuley
v. Carter, 22 111. 53.
The judgment is affirmed.
Judgment affirmed.
Thomas J. Yennum
Hiram Venntjm.
Bill in equity — proofs. Where a bill in equity is framed on the
theory that there was fraud entitling the complainant to relief, and the
proof fails, complainant can not shift his ground and have relief on other
grounds upon which the bill does , not proceed.
Appeal from the Circuit Court of Iroquois county ; the
Hon. Charles H. Wood, Judge, presiding.
Messrs. Blades & Kay, for the appellant.
Messrs. Eolf, Doyle & McCulloch, for the appellee.
332 Vennum v. Vennum. [Sept. T.,
Opinion of the Court.
Mr. Justice Sheldon delivered the opinion of the Court :
This was a bill in equity, brought by the appellant against
the appellee, setting forth that, at the February term, 1868,
of the Iroquois circuit court, a judgment was rendered in favor
of John White for the use of appellant, against Henry J. Fry,
for the sum of §1344 damages and $20.80 costs ; that after
the finding of the verdict, and before the rendition of the
judgment, Fry sold and disposed of all his property subject
to execution to prevent appellant from obtaining satisfaction
of his judgment; that Fry is wholly insolvent and has no
property out of which satisfaction of the judgment can be had.
The bill further states that, at the November term of said
court, a judgment was rendered against the complainant for
the sum of §422.80 damages, and costs of suit, in favor of the
said Fry for the use of Hiram Vennum ; that execution had
been issued upon the same and levied on complainant's prop-
erty.
The bill charges that the last mentioned judgment is the
property of said Fry, and being collected for his benefit; that
said Hiram Vennum does not own the same, but is colluding
with Fry to wrong the complainant. The bill prays that the
collection of the last named judgment may be enjoined, and
that it be set off and be made to apply as a credit on the first
mentioned judgment of the complainant against the said
Henry J. Fry.
"We have carefully examined the proofs in this case, and find
that they fail to sustain the allegations of the bill.
They show that the account on which the judgment in favor
of Frv for the use of Hiram Vennum was rendered, was sold
and assigned by the former to the latter towards payment of a
bona fide indebtedness from Fry to Hiram Vennum for bor-
rowed money; that Fry has no real interest in the judgment,
and that the whole beneficial interest in it belongs to Hirain
Vennum.
1871.] Vennum v. Vennum. 333
Opinion of the Court.
Neither the sale and assignment of the account, nor the
obtention of the judgment for the use of Hiram Vennum,
appear to be fraudulent as to the appellant, Thomas J. Ven-
num.
The point is made in the argument that the insolvency of one
of the parties is a sufficient ground for the court to exercise its
equitable jurisdiction in allowing an equitable set-oif ; that
there existed this equitable right of set-oif against Fry at the
time he transferred the account ; that the assignee of a chose
in action takes it subject to all the equities which existed
against it in the hands of the assignor, including the equitable
right of set-off, if any such right existed against the assignor,
and that the same relief should be afforded against Hiram
Vennum, the equitable assignee, even though there be no
fraud, as would have been afforded against Fry had there been
no assignment.
It is sufficient to say that the bill makes no such case. It
is grounded on fraud and the ownership by Fry of the last named
judgment. No equitable right of set-off is shown at the time
of the transfer of the account. The allegation of Fry's in-
solvency is not that it was at that time, but at the time of
the filing of the bill.
The decree of the court below dismissing the bill is affirmed.
Decree affirmed.
'/
334 Bennett v. McFadden et al. [Sept. T.,
S3'llabus. Statement of the case.
Solomon Bennett
George C. McFadden et al.
1. CrTANCERY — practice upon sustaining a motion to dissolve an inj mic-
tion. Where the court, upon a motion made to dissolve an injunction for
want of equity in the bill, sustains the motion, dissolves the injunction and
dismisses the bill, the allegations of the bill are to be taken as true, the
same as upon a demurrer.
2. Same — injunction — cloud on title. Equity will entertain a bill to re-
strain, by injunction, the sale of lands on execution, for the purpose of
preventing the creation of a cloud upon the complainant's title.
Writ of Error to the Circuit Court of Woodford county ;
the Hon. S. L. Richmond, Judge, presiding.
This was a bill in chancery, filed by Solomon Bennett, on
the 31st of May, 1866, in the Peoria circuit court, against
McFadden, sheriff of Peoria county, and others, to enjoin the
sale of Bennett's lot, to satisfy an execution in favor of Selz
et al. against Israel Bennett. An injunction was granted.
Afterwards, on motion of the defendants, the injunction was
dissolved, and a change of venue taken to Woodford county,
and upon a hearing the bill was dismissed, and $50 damages
were awarded in favor of defendants by reason of the alleged
wrongful suing out of said injunction.
The complainant brings the record to this court.
The bill alleges that the complainant had been, since the
16th day of May, 1865, the owner in fee simple, and possessed
of lot 4, block 37, in Munso & Sanford's addition to the city
of Peoria; that on the 23d of May, 1866, George C. McFad-
den, sheriff of Peoria county, by virtue of four executions from
Cook county, dated 18th May, 1866, all in favor of Morris
Selz and Abraham Cohen, and against Israel Bennett, levied
upon said lot, claiming the same as the property of Israel Ben-
nett. Copies of executions, levies, etc., attached to bill as ex-
hibits.
1871.] Bennett v. McFadden et al. 33 o
Opinion of the Court.
The bill also alleges that complainant is the legal as well as
the equitable owner of said lot; that said Israel Bennett has
not now, nor never has had any interest whatever, either in
law or equity, in said premises, and that the same are not
liable to levy and sale under said execution; that said sheriff
is threatening to sell said lot under and by said executions,
and has actually advertised the same for sale, and threatens to
and will sell the same at public auction on the 14th day of
June, A. D. 1866, at the front door of the court house in the
county of Peoria, unless said sheriff is restrained from making
said sale by an order of court. Copy of advertisement is at-
tached to bill as exhibit "E."
The bill further alleges that, if said McFadden is permitted
to proceed with said sale so advertised, and files in the office
of the clerk of the circuit court of Peoria county certificates
of purchase therefor, it will greatly embarrass, cloud and cast
suspicion upon the title of the complainant to said premises,
and prevent him from selling it at as fair price as he could do
if said cloud upon his title was prevented by an injunction;
that said levy, advertisement and threatened sale are insti-
gated by said Morris Selz and Abraham Cohen, the plaintiffs
in said executions, for the purpose of injuring and harrassing
the complainant, and with the fraudulent intention of casting
a suspicion and cloud on his title to said premises.
Prayer for an injunction to restrain the sheriff from selling
said premises by virtue of said executions, and from attempt-
ing to enforce said levy or embarrassing complainant's title to
said premises.
Messrs. Ingersoll & McCune, and Mr. S. D. Puter-
BAUGH, for the plaintiff in error.
Messrs. Wead & Jack, for the defendants in error.
Per Curiam : Where the court, upon a motion made to
dissolve an injunction for want of equity in the bill, sustains
the motion, dissolves the injunction and dismisses the bill, the
336 Dyer v. Day et al. [Sept. T.,
Syllabus.
allegations of the bill are to be taken as true, the same as upon
a demurrer. The matters alleged in the bill in this case bring
it within the principle of the case of Christie et al. v. Hale, 46
111. 117.
The court below erred in dissolving the injunction and dis-
missing the bill for want of equity, and the decree must be
reversed and the cause remanded.
Decree reversed.
Arthur Dyer
Ezra Day et al.
1. Ejectment— fraud as a defense. A and his wife conveyed to B a
tract of land, which the latter afterwards conveyed to C. A still remaining
in possession of the land, C brought an action of ejectment against him.
The defendant offered to show, in defense, that the deed from him and his
wife to B was made in consideration of a conveyance to him by B of a
tract of land in Missouri, and that B had made fraudulent representations
as to the character and value of such land, to which the plaintiff was a
party : Held, that, while if the fraud, as claimed, had been practiced, it
would afford good ground for asking a court of equity to rescind the con-
tract and direct mutual reconveyances, yet it could not be received as a
defense to the action, as in ejectment the legal title must prevail, and the
deeds showed a legal title in the plaintiff, and the alleged fraud went to
the consideration, merely, and not to the execution of the deed.
2. Nor could it avail the defendant that he had induced his wife to sign
the deed, relinquishing her homestead right in the land, by leading her to
suppose the instrument was a mortgage to secure the payment of $200,
even if the grantee in the deed and the plaintiff wTere both cognizant of
such fraudulent representation; for the action was brought against the
husband alone, and he could not be permitted to set up his own fraudulent
statements to his wife to defeat a recovery.
3. The remedy of the wife could only be sought in a proceeding to
which she, herself, is a party, and in which the relief could be adjusted on
equitable grounds. And should the property be worth more than $1000 —
as her claim could amount only to that sum in any event — the respective
rights of the parties could be settled only in chancery.
1871.] Dyer v. Day et al 337
Opinion of the Court.
Appeal from the Court of Common Pleas of the city of
Aurora ; the Hon. Richard G. Montony, Judge, presiding.
Mr. C. J. Metzner, for the appellant.
Messrs. Parks & Annis, for the appellees.
Mr. Chief Justice Lawrence delivered the opinion of
the Court :
This was an action of ejectment in which the plaintiff
claimed under a deed executed by the defendant and his wife
to one Bradley, and a deed from Bradley to himself. The
defense set up was, that the deed from the defendant was
made in consideration of a conveyance by Bradley to him of a
tract of land in Missouri, and that Bradley had made fraudu-
lent representations as to the character and value of said land,
to which the plaintiff was a party. The court excluded the
evidence.
In this, the court did not err. The deeds showed a legal
title in the plaintiff. If the fraud alleged had been practiced,
it would furnish good ground for asking a court to rescind the
contract and direct mutual reconveyances, but can not be re-
ceived as a defense in this action. In ejectment, the legal
title must prevail. The alleged fraud goes to the considera-
tion, merely, and not to the execution, of the deed. The
grounds for avoiding the contract are of equitable cognizance,
and only on that side of the court can complete justice be
administered in a case of this character.
What we have said applies also to the proof in regard to
the acknowledgment of the wife relinquishing the homestead.
It is said she was led by her husband to suppose the instru-
ment was a mortgage to secure $200. There was no proof
that the plaintiff was privy to the fraud. But even if Brad-
ley and the plaintiff were both cognizant of the alleged fraud-
ulent representation, it is to be remembered that this is a suit
against Day alone, and he can not be permitted to set up his
22— 61st III.
338 Bliss et al. v. Heasty et al. [Sept. T.,
Syllabus.
own fraudulent statements to his wife to defeat a recovery.
If her homestead rights are to be prejudiced, she can file her
bill in chancery and the court can give her such protection as
the equity of her case may require. It is admitted that she
knew she was relinquishing her homestead, but it is claimed
she thought the instrument was a mortgage. Admitting that
she was deceived, and that Bradley and the plaintiff were cog-
nizant of the deception, still, her remedy must be sought in a
proceeding to which she is, herself, a party, and in which the
relief can be adjusted on equitable grounds. Should the prop-
erty be worth more than $1000 — as her claim could amount
only to that sum in any event — the respective rights of the
parties could be settled only in chancery.
Judgment affirmed.
Samuel Bliss et al.
Daniel Heasty et al.
1. Judgment — in attachment — its effect. A judgment in attachment
without service or appearance will protect strangers to the record in rights
acquired by purchase of the property under it. But the plaintiff and the
sureties on his bond are liable to the defendant for all damage he sustains
by the wrongful suing out of the writ, and this, too, whether or not the
suit progresses to a judgment.
2. Where a judgment in rem is recovered in a proceeding by attach-
ment, there being no personal service or appearance, and the property
levied on is insufficient to pay it, the plaintiff, to recover the balance,
must sue on the original indebtedness; and in such a suit the defendant
may set up any defense he could had the attachment proceeding never
been instituted. In such a case, the defendant is not concluded by the
judgment in attachment, and it can only be pleaded in bar to the extent
of the satisfaction had under it.
3. Where there is service or appearance by the defendant, then the case
would probably be entirely different.
1871.] Buss et al v. Heasty et al. 339
Opinion of the Court.
Appeal from the Circuit Court of Cook county ; the Hon.
John G. Rogers, Judge, presiding.
Mr. Norman C. Perkins and Mr. J. A. Crain, for the
appellants.
Messrs. Rich & Thomas, for the appellees.
Mr. Justice Walker delivered the opinion of the Court :
It appears that appellees, who were traders in Marshall-
town, in Iowa, ordered of appellants, wholesale grocers in
Chicago, through their traveling agent, a number of barrels
of dried fruit. It was to be of choice quality, and appellants
were so advised by their agent. The fruit was shipped to
appellees, who received it, but not regarding it of the quality
ordered they returned it to appellants without explanation.
On receiving it, they credited appellees with the fruit at what
they claim was the market price, being two or three cents less
on the pound than they had charged appellees for it, upon the
alleged ground that it had fallen in the market between the
time when shipped and returned to them. This, with the
charges paid for freight, left a balance in favor of appellants
of $49.77. Subsequently they sued out a writ of attachment
against appellees, had it levied upon their property, gave no-
tice, and no defense being made, appellants recovered judgment
for that sum and costs, and sued out execution and sold the.
property attached for a trifle over the amount of the judgment
and costs. Thereupon appellees brought this suit for mali-
ciously and wrongfully suing out the writ of attachment, and
recovered the judgment from which this appeal was taken.
Appellants urge that the court below erred in rendering the
judgment, because they claim the recovery in the attachment
suit is conclusive between the parties and can not be ques-
tioned in a collateral proceeding. That it is so far conclusive
that strangers to the proceeding will be protected in their
rights by purchase or otherwise, inasmuch as the court ac-
quired jurisdiction of the subject matter, we can not doubt.
340 Bliss et al. v. Heasty et al. [Sept. T.,
Opinion of the Court.
Such we believe to be the uniform rule of all courts. But
whether it is binding upon all of the parties to it until re-
versed, presents a very different question. If such be held to
be the law, then many cases might be supposed, not unlikely
to occur, in which a non-resident or absent debtor might be
subjected to great wrong.
If it should occur that a note should be forged against a
person absent from the State, or a fictitious claim should be
made the basis of an attachment, and all of the proceedings
should be regularly conducted to judgment, and a sale of the
property, to hold that the judgment was conclusive until
reversed, would be to hold that, by fraud and false pretenses
in asserting such a claim, a man may be stripped of his prop-
erty without remedy. It can not surely be said of the law
that it will sanction and protect such injustice, fraud and
wrong. In such a case, all that would be necessary for the
protection of such gross injustice would be to have all of the
legal steps in the suit conform to the statute, and the plain-
tiffs in the attachment could hold the money thus acquired,
however fraudulent the claim or criminal the means by which
the judgment was obtained. The law is not so inefficient in
its power to protect persons in their rights.
It was, no doubt, to prevent the perpetration of such injus-
tice, that the general assembly, in giving the remedy by at-
tachment, made it a condition in the bond that the plaintiff in
attachment and his sureties should be liable for all damages
occasioned by wrongfully suing out the attachment. It could
not have been designed that they should only be liable incase
plaintiff failed to recover judgment. If nothing is due, or the
plaintiff fraudulently sues out the writ and prosecutes it to
judgment, and a sale follows, he, undeniably, has wrongfully
sued out the writ. The mere fact that he has recovered a
judgment on a false and unjust claim, does not render the
claim just or the suit proper. It is wrongful and as abhorrent
to justice to sue and recover on such a claim as it is to fail to
recover a judgment.
1871.] Bliss et al. v. Heasty et al. 341
Opinion of the Court.
The form of the bond required of the plaintiff before suing
out the writ, found in the 5th section of the attachment act,
fully recognizes the right to sue for wrongfully suing out the
attachment. The condition is, that if the plaintiff shall pros-
ecute his suit with effect, or in case of failure shall pay the
defendant all costs in the suit and such damages as shall be
awarded against the plaintiff, etc., in any suit brought for
wrongfully suing out the attachment. This language recog-
nizes the right to maintain a suit for wrongfully bringing such
a suit, and we have seen that the wrong is as great or greater
when it progresses to judgment as when the suit fails. The
reason and the necessity of maintaining such an action to cor-
rect the wrong, is surely as grave in case of the recovery of a
judgment as when no judgment is rendered. And this sec-
tion has not limited the suit to the failure to recover the judg-
ment, but has recognized the right whenever the attachment
is wrongfully sued out.
In cases of a recovery in attachment, and the property
against which judgment is rendered is insufficient to satisfy
the judgment, a further suit to recover the balance can only
be maintained on the original cause of action and not on the
judgment in attachment. And in such a suit, the defendant
may set up and rely upon any defense he could have inter-
posed had no suit in attachment ever been brought or judg-
ment therein recovered. Nor can the plaintiff, in such a case,
rely upon the judgment to conclude the defense. Such a judg-
ment is only conclusive of the fact that such a proceeding was
had, and protects rights acquired under it. This seems to be
the rule in all courts where ep parte proceedings of this char-
acter obtain. If, when a suit is brought on the claim, the
previous judgment in attachment can not be pleaded as a bar
beyond the sum collected under it, why should it be any more
conclusive when the defendant sues the plaintiff for wrong-
fully suing out the attachment? No reason is perceived why
it should be in the one case more than the other. It was held,
r>42 Keller v. Rossbach. [Sept. T.,
Syllabus. Statement of the case. Opinion of the Court.
in the case of Bump v. Belts, 19 Wend. 421, that such a judg-
ment is not conclusive to bar an action for maliciously suing
out an attachment. If, however, the defendant in attachment
should be served, or should enter his appearance, then the
case, probably, would be altogether changed. We are clearly
of the opinion that this action was properly brought, and the
judgment in the attachment suit was not conclusive of the
rights of the parties, and was not a bar. The evidence sus-
tains the verdict, and the judgment of the court below must
be affirmed.
Judgment affirmed.
Peter Keller
v.
Joseph H. Eossbach.
New trial — verdict against the evidence. In this case, the verdict of the
jury is regarded as sustained by the evidence.
Appeal from the Superior Court of Cook county; the Hon.
Wm. A. Porter, Judge, presiding.
This was an action of assumpsit, brought by Eossbach
against Keller to recover for goods, wares and merchandise
sold and delivered by the plaintiff to the defendant.
A trial by jury resulted in a verdict and judgment in favor
of the plaintiff for $365. To reverse this judgment the de-
fendant appeals.
Mr. Thomas Shirley, for the appellant.
Mr. Adolph Mo9es, for the appellee.
Per Curiam : There was no ground of objection to the depo-
sitions. Notice was given to appellant's attorney of the time
1871.] Steele et al. v. Buck. 343
Syllabus.
of suing out the dedimus, with interrogatories, in full com-
pliance with section 10 of chapter 40, R. Stat. 233, and they
were returned to the superior court enclosed with the dedimus.
The proof of indebtedness is overwhelming in favor of ap-
pellee, and the verdict was right, and the judgment must be
affirmed.
Judgment affirmed.
George Steele et al.
v.
E. A. Buck.
1. Bailee — return of chattel. Where a vessel is chartered for a speci-
fied time, at a fixed price, under a written contract, and a bond with secu-
rity is given, conditioned for the payment of the price, and for the return
of the vessel at the time named "in as tight, staunch and good condition
as she now is, reasonable wear and tear excepted," and before the time for
her return the vessel is destroyed in a gale by the "act of God," through
no fault, or negligence whatever, the bailee and his surety are still liable
upon their bond, and must respond in damages to the owner of the vessel
for not returning her according to the terms of their obligation. But ii
seems that if the liability of the bailee had rested upon the charter alone,
without the bond to return, the rule might be different. Nor would the
mere fact that, in pursuance of the charter, the vessel had been insured for
the benefit of the owner, constitute any defense to au action on such a
bond, unless it were also shown that he had received the insurance monejr,
and was therefore not entitled to a second satisfaction for the loss of his
property.
2. Same — general rule. The principle underlying all the English and
American authorities on this subject is, that a party must perform his con-
tract, and if loss occurs by inevitable accident, the law will let it rest upon
the party who has contracted that he will bear it. He is an insurer to the
extent of making good the loss. The rule is just, and founded in reason,
for if he did not intend to bear the loss, it is natural to presume that he
would have stipulated against it. And again, where one of two innocent
persons must sustain a loss, the law casts the burden upon the party who
agreed to sustain it, or rather, leaves it where the parties, by their agree-
ment, placed it.
344 Steele et al. v. Buck. [Sept. Tf
Opinion of the Court.
3. Exceptions — death. Exceptions to this rule have been allowed in
recognizances, where, if the person die, the liability of the surety is dis-
charged; and in an obligation to deliver a living animal, where, if it die,
the obligor is excused; and also in cases where a party agrees to render
personal service, to work for a stipulated period, or to do a' certain class of
work that can not be performed by another, and dies before the contract
is completed. In all these cases the obligation is discharged.
4. Same — implied contracts. So, too, the performance of duties implied
py law may be excused when performance becomes impossible by inevi-
table accident, but a duty or charge created by the express terms of an
agreement may not be so excused. A party having failed to provide for
his own protection in case of disaster, the law will not supply the omission.
Appeal from the Superior Court of Cook county ; the Hon.
Joseph E. Gary, Judge, presiding.
Messrs. Miller, Van Arman, Frost & Lewis, for the ap-
pellants.
Messrs. Rae & Mitchell, for the appellee.
Mr. Justice Scott delivered the opinion of the Court :
This was an action of debt, brought by the appellee on a
bond given by Charles Vogell and William B. Crandall, as
principals, and the appellant Steele, as surety, to secure the
performance of the covenants of a charter-party bearing even
date with the bond. The charter-party was in the usual form,
and, by its terms, Vogell and Crandall were to have the ex-
clusive use and possession of the propeller " Equator," to man
and run her during the season of 1869, to be employed in the
business of commerce and navigation upon the lakes and nav-
igable waters connecting the same; and for the use of the
vessel they were to pay a stipulated price, and in addition
thereto, it contained an express covenant that they would de-
liver the propeller at the port of Chicago at the close of the
navigation season for that year, in as good and sound condition
as she then was, reasonable use and wear excepted.
Two specific breaches were assigned on the covenants con-
tained in the bond : first, that Vogell and Crandall did not pay
1871.] Steele et ah v. Buck. 345
Opinion of the Court.
the stipulated sums for the use of the vessel; and, second, that
thev did not return it at the close of the season of navigation
of the year 1869, as by the terms of the charter-party they
were bound to do.
It is not claimed that there is anything due for the use of
the vessel, and the main question in the case arises upon the
construction and legal effect of the covenant contained in ex-
press terms in the bond as declared on in the second breach,
as well as in the charter-party, " to return and give up the said
propeller ' Equator ' to the said E. A. Buck, his executors, ad-
ministrators, and assigns, or his or their order, at the port of
Chicago, at the close of the said season of the year 1869, in as
tight, staunch and good condition as she now is, reasonable
wear and tear excepted."
Whatever would discharge the liability of Vogell and Cran-
dall, would of course operate as an acquittance to the appel-
lant Steele, who was only their surety on the bond.
Evidence wras tendered on the trial in the court below to
prove that, before suit was brought, and while Vogell and
Crandall we're in possession of the propeller "Equator," and
while they were using and employing her under the charter-
party on the waters of Lake Michigan, to wit, on the 18th of
November, 1869, and before any breach of the condition of
the bond, the propeller was overtaken by a gale, and was, by
force and violence of the wind and waves, and without any
fault or negligence on the part of Vogell and Crandall, or
those navigating her, broken to pieces and sunk in the waters
of the lake, and become and was utterly lost and destroyed.
The court, on objection being made, rejected the evidence.
This ruling of the court raises the principal question in the
case: whether Vogell and Crandall were excused from the
performance of the covenant in the charter-party, to secure
which the bond had been executed that required them to de-
liver the propeller to the appellee at the port of Chicago, in
consequence of its destruction by the perils of the sea, or by
what is commonly called " the act of God."
346 Steele et at. v. Buck. [Sept. T.,
Opinion of the Court.
It is insisted by the counsel for the appellants that, when the
performance of a contract has become impossible by the act of
God, the party is relieved from the obligation to perform, ami
that this rule is especially applicable to the liability of a bailee
of personal property, even though it arises upon an express eon-
tract, and is especially applicable to the covenant to deliver,
or surrender up, the property of another received by the obli-
gor or bailee, even though such obligor be a common carrier,
as to whom the law applies the strictest rule of liability, and
that the covenant for the breach of which this action is brought
is of this character.
If no distinction can properly be taken between obligations
created by law, or arising out of implied contracts, and where
the contract itself expressly creates the duty or charge, then
the rule of law insisted upon might be maintained, at least to
a limited extent.
The general doctrine is, as laid down in Paradine v. Jaine,
Aleyn, 27, cited in 3 Bos. & Pul. 420 : "Where a party, by
his own contract, creates a duty or charge upon himself, lie is
bound to make it good, if he may, notwithstanding any acci-
dent by inevitable necessity, because he might have provided
against it bv his own contract." And as said bv Mr. Justice
Chambre, in the latter case : "If a party enter into an abso-
lute contract, without any qualifications or exceptions, and re-
ceives from the party, with whom he contracts, the considera-
tion for such engagement, he must abide by the contract, and
either do the act or pay damages, his liability arising from his
own direct and positive undertaking." To the same effect are
the following cases: Bacon et aL v. Cobb et al. 45 111. 47;
Mill Dam Foundry v. Hovey, 21 Pick. 441 ; Demott v. Jones, 2
Wallace 1; School Trustees v. Bennett, 3 Dutch. 518; Bullock
v. Dommitt, 6 Term, 650 ; Brennock v. Pritchard, 6 Term, 750.
The principle that lies at the foundation of the series of
authorities, English and American, on this question, is, that
the party must perform his contract, and if loss occurs by
1871.] Steele et al v. Buck. 347
Opinion of the Court.
inevitable accident, the law will let it rest upon the party who
has contracted that he will bear it.
The rule is a just one, and has its foundation in reason, for,
if he did not intend to bear the loss, it is natural to presume
that he would have stipulated against it. It tends to promote
justice by regarding the sanctity of contracts. In some in-
stances it may work a hardship; so do all general rules; but
they are none the less indispensable in the affairs of life for
that reason.
There have been exceptions allowed in obligations taken in
judicial proceedings, such as recognizances and replevin bonds.
In recognizances, if the person die, the liability of the surety
is discharged. So, too, in regard to an obligation to deliver a
living animal. If it die, the obligor is excused from perform-
ance. The same principle prevails where a party agrees to
render personal service, to work for a stipulated period, or to
do a certain class of work that can not be performed by an-
other, and dies before the contract is completed; the obligation
is discharged. Schwartz v. Saunders, 46 111. 22.
But where the party may perform the contract, and has not
provided for the dispensation, the law will not do it for him.
Where a tenant, for example, has covenanted to repair, and
the buildings are destroyed by fire, or lightning, or the act of
God, as it is termed, the tenant must rebuild upon the demised
premises. The reason is obvious. He has contracted ex-
pressly to do it, and it is possible for him to restore that which
has been destroyed, and if he does not do it, he must respond
in damages. By rebuilding, it will answer the covenant tore-
pair, and he can not avoid his obligation by reason of the de-
struction of the building, even without fault on his part. It
is the contract, and he must perform it. It is possible for him
to comply, and the law will not excuse performance.
A distinction has been taken between implied contracts, or
such as the law raises, and express contracts. The perform-
ance of duties implied by law may be excused when perform-
ance becomes impossible by inevitable accident; but a duty or
348 Steele et ah v. Buck. [Sept. T.,
Opinion of the Conrt.
charge created by the express terms of an agreement may not
be so excused.
In Hovey's case, 21 Pick. 47, Mr. Chief Justice Shaw says:
"The distinction is now well settled between an obligation or
duty imposed by law, and that created by covenant or act of
the party. When the law creates a duty, and the party is dis-
abled from performing it, without any fault of his own, the
law will excuse him, as in Avaste to a tenant if the same be
destroyed by a tempest or enemies, the lessee will be excused;
but where the party, by his own contract, creates a duty or
charge upon himself, he is bound to make it good, notwith-
standing any accident by inevitable necessity, because he might
have provided against it by his contract," and cites 2 Wm,
Saund. 422 a, note 2.
The reason given for the rule is, that when, if an event hap-
pen which will occasion loss to one or the other contracting
parties, yet the party who contracts that the event shall not
happen, although he may be unable to perform his contract by
reason of the act of God, he shall stand the risk and make
good the loss. The party contracting assumes the responsi-
bility for the consequences that may follow, if, for any cause
whatever, he may be unable to perform his contract. He is
an insurer to the extent of making good the loss.
The covenant in the bond declared on is of this character.
It is absolute in its terms. It is a positive undertaking by
Vogell and Crandall to restore the propeller at the end of the
season for which it was hired, notwithstanding it might be de-
stroyed by the perils of the sea. The charter-party itself pro-
vides for the return of the propeller, and if this was all the
contract between the parties, there might be some reason lor
insisting that it creates no higher obligation than the law im-
poses. The charterers in this instance had given the bond,
which is the subject of this action, with security for the per-
formance of this very covenant in the charter-party.
We are at a loss to understand what is wanting to make this
an express covenant to re-deliver the propeller at the end ol
1871.] Steele et al v. Buck. 349
Opinion of the Court.
the navigation season, even to making the charterers insurers
against the perils of the sea. Whence the necessity for the
bono! and security, if it was not the express agreement and in-
tention to charge the charterers, if the propeller was lost by
the perils of navigation? If it was simply that the charter-
ers should restore the propeller, in case it were not lost, the
charter-party imposed that obligation, and there could be no
necessity for taking the bond. Only two covenants contained
in the charter-party are specifically named in the bond: first,
the payment of the agreed price for the use; and, second, for
the return of the propeller. The payment of the hire was a
minor consideration, and doubtless the main covenant in the
charter-party that the bond was given to secure, was the cov-
enant to return the propeller. No other construction can rea-
sonably be given to it, than that it was an absolute undertak-
ing on the part of the appellant Steele, that the charterers
should return the propeller at the end of the navigation sea-
son, notwithstanding the perils of the sea. His obligation
was absolute, that they should perform that covenant in the
charter-party.
The case of Madeiras v. Hill, 8 Bing. 230, cited by counsel,
is not in conflict with the views we have expressed. In that
case it was held that it was no defense to an action on a char-
ter-party for not sailing on the voyage towards the port agreed
on, that the port was in a state of blockade, if the defendant
knew the condition of the port at the time of entering into
the charter-party. The rule in Paradine v. Jaine was applied.
Taylor v. Caldwell, 113 Eng. C. L. 836, does not seem to us
to be exactly in point. The^ contract was for the use of a
music hall for certain days named, in the future. Before either
party had entered upon the execution of the contract, the hall
was destroyed by fire. It was held, that the parties must have
contracted with reference to the continued existence of the
thing which constituted the foundation of what was to be
clone. The hall having ceased to exist, without fault of either
party, it was held that both parties were discharged from the
350 Steele et al v. Buck. [Sept. T.,
Opinion of the Court.
performance of their respective obligations. Mr. Justice
Blackburn, in delivering the judgment of the court, said j
"There seems to be no doubt that, where there is a positive
contract to do a thing, not in itself unlawful, the contractor
must perform it or pay damages for not doing it, although, in
consequence of unforeseen accidents, the performance of his
contract has become unexpectedly burdensome, or even im-
possible ;'' but takes the case out of the general rule on the
ground that the parties in that case must have contracted with
reference to the continued existence of the thing which formed
the basis of the contract, on the principle of the civil law that
such an exception is implied in every obligation of that char-
acter.
The brig Casco, Davies' R. 184, illustrates no principle in-
volved in the decision of this case.
Ames v. Belden, 17 Barb. 513, may be distinguished from
the case at bar. There the action was on the charter-party
containing equivalent words to those of the charter-party in
this case, and it was held that a covenant to insure should
never be implied; a covenant of that nature not appertaining
to contracts of bailment.
Here the action is not on the charter-party, but upon a bond
expressly conditioned for the performance of the covenants of
the charter-party.
The case of Bacon et al v. Cobb et al 45 111. 47, is an
authority against the position assumed by the appellant.
The court cites the case of School Trustees v. Bennett, 3
Dutch. 513, which announces the well recognized principle
that, where one of two innocent persons must sustain a loss,
the law casts the burden upon the party who agreed to sustain
it, or rather leaves it where the parties, by their agreement,
placed it.
Such is the character of this transaction. Vogell and Cran-
dall, by the terms of the charter-party, agreed to return the
propeller at the end of the navigation season, and the appel-
lant Steele, as their surety, expressly agreed, by the terms of
1871.] Steele et al. v. Buck. 351
Dissenting opinion of Justice Sheldon.
the bond, which is the subject of this action, that they should
perform that covenant in the charter-party. The parties did
not provide, by their contract, for any excuse in case of the
destruction of the propeller by reason of any accident arising
from inevitable necessity, and the law will not supply the
omission for the contracting party. Having failed to make
provision for their protection in case of disaster, the parties
can not now set up, as an excuse for the non-compliance with
the express terms of the bond, that the propeller was destroyed
by the perils of the sea, and the evidence as to its destruction
was properly rejected.
The mere fact that the vessel was insured for the benefit of
the appellee, would constitute no defense to the action. Had
the appellant offered to prove that the appellee had received
the insurance money, it is conceded that no valid objection
could have been interposed. He could have but one satisfac-
tion for the loss of his property. This they did not offer to do.
The court ruled correctly in excluding the evidence ten-
dered, and the judgment must be affirmed.
Judgment affirmed.
Mr. Justice Sheldon, dissenting : The destruction of the
vessel offered to be proved in this case was by what may be
properly termed, the act of God.
It seems to me to be a principle sustained by the authorities,
that the obligor in a bond, in order to avoid the forfeiture of
his obligation, is not bound at all events to perform the con-
dition of the bond, but is excused from the performance where
it has been rendered impossible by the act of God, or of the
law. United States v. Thoma^ 15 Wall. 337 ; Carpenter v. Ste-
vens, 12 Wend. 589; The People v. Manning, 8 Cow. 296; The
People v. Bartlett, 3 Hill, 570; Co. Litt. 206 (a).
No case which has come under my observation, limits the
principle to any particular class of bonds, but it is laid dowu
as a general principle applicable to bonds.
352 Armstrong, Adm'x, etc., v. City of Chicago. [Sept.T.,
Syllabus.
The same doctrine has been applied to absolute express con-
tracts by bailees and common carriers for the delivery of the
thing bailed, or to be carried. Hi/land v. Paul, 33 Barb. 241;
Price v. Hartshorn, 44 N. Y. 95. This bond was but to secure
the performance of such a contract by bailees.
In Taylor v. Caldwell, 113 E. C. L. E. 113 (3 Best & Smith,
Q. B. 826), upon an elaborate consideration of the subject and
review of the authorities, the principle is deduced that, in con-
tracts in which the performance depends on the continued ex-
istence of a given person or thing, a condition is implied that
the impossibility of performance arising from the perishing
of the person or thing shall excuse the performance.
Besides, the charter-party in this case contained a provision
that the charterers should cause the vessel to be insured in the
name of Buck, the owner, and that they, the charterers, should
pay 85 per cent of the premium for insurance. This was done,
or proof that it was, was offered.
Taking all the writings together, in order to ascertain the
nature of the contract and the intention of the parties, this
policy of insurance, and not the bond, would seem to be the
kind of indemnity which the parties intended to provide
against such a casualty to the vessel as the one that occurred.
Amanda F. Armstrong, Adm'x, etc.
v.
The City of Chicago.
1. Special assessments in the city of Chicago — publication of notice, by
whom tobe certified. The fact whether the publication of notice of an ap-
plication for judgment upon a special assessment warrant was or was not
certified by the printer or publisher of the newspaper in which it is
claimed the publication was made, is open to proof.
1871.] Armstrong, Adm'x, etc., v. City of Chicago. 353
Opinion of the Court.
2. So, where a certificate of that character purported upon its face to
have been given by the publisher of the newspaper, but it was shown by-
proof that the person certifying was not the publisher until after the time
of the publication, it was held, the certificate was insufficient to give the
court jurisdiction.
Appeal from the Superior Court of Cook county; the Hon.
Joseph E. Gary, Judge, presiding.
Mr. "W. E. Furness, for the appellant.
Mr. M. F. Tuley, Corporation Counsel, for the appellee.
Mr. Justice McAllister delivered the opinion of the
Court :
This is an appeal from the judgment of the Superior Court,
rendered at the March term, 1871, upon a special assessment
warrant for opening a street to be called Campbell avenue.
The collector's report, upon which judgment was sought,
contained the certificate of publication of the notice of appli-
cation for judgment, bearing date the 4th day of March, 1871,
purporting to be signed by Henry C. Cook, publisher of the
"Chicago Republican" newspaper, certifying that the notice
was published in that paper ten times consecutively ; that the
date of the first paper containing the same was the 27th day
of September, 1870, and the date of the last paper containing
it was the 7th day of October, 1870.
The objection having been duly made in the court below,
the appellant's counsel introduced evidence which stands un-
contradicted, showing that Cook was not the publisher of this
newspaper during the time of the publication of the notice in
question, and did not become such until two months after the
date of the first paper containing the notice.
The certificate of publication, and such notice, are required
by the 13th section of chapter 9 of city charter (Gary's Laws
88) to be filed by the collector, with his report, in the court
to which application for judgment is to be made. It is as
essential to the jurisdiction of the court that the certificate of
23— 6 1st III.
354 Beardsley v. Hill. [Sept. T.,
Syllabus.
the printer or publisher of the newspaper be filed as that the
collector's report should be. The fact whether the person cer-
tifying was or was not the printer or publisher at the time of
publication, must be open to proof. If he was neither, the
certificate is no better than if made by a person who never
saw the newspaper in which the notice is alleged to have been
published.
For this reason, and because the collector was not author-
ized to make application for judgment since the new constitu-
tion, the judgment must be reversed and the cause remanded.
Judgment reversed.
Lawrence S. Beardsley
v.
Mark W. Hill.
1. Appeal — county court — how taken. Where the county court ren-
dered a judgment, and the defendant filed in that court an appeal hond
which was approved by the county judge before the expiration of twenty
days : Held, the appeal was perfected, although the bond was not sent to
the court to which the appeal was taken until after that time. An appeal
taken from the probate court may be perfected in the same manner that
appeals may be from justices of the peace.
2. Where an administrator appeals, and the condition of the bond re-
cites that he is administrator, and at the end of his signature to the
bond he adds "Adm'r," the court will not hold this is an individual hond
of the administrator. A defect in the condition of such a bond must he
objected to in the court to which the appeal is taken, to be availing.
Such objection comes too late when made for the first time in this court.
3. Costs — claim against an estate. Where the record fails to show when
the administrator was appointed, the date of his letters, or that a term of
court had been fixed for the adjustment of claims, or any evidence that
defendant was administrator until the allowance of the claim, it will not
be presumed that the claim was irregularly filed or that the costs were
improperly awarded against the defendant.
1871.] Beardsley v. Hill. 355
Opinion of the Court.
4. Promissory note — words omitted — intendments. Where a person, by
a writing in the form of a note, promises to pay the person named "one
hundred and ninety-one, fifty cents, for money borrowed:" Held, that
this was a promissory note for the sum of $191.50, and that the presump-
tion will be indulged that the word "dollars" was unintentionally omitted
when the note was drawn.
Writ of Error to the Superior Court of Cook county.
Messrs. Story & King, for the plaintiff in error.
Messrs. Nicholson & Morrison, for the defendant in error.
Mr. Justice Thornton delivered the opinion of the Court :
The judgment in this case was rendered upon the following
writing, originally filed in the county court:
"191.50. Chicago, August 8th, 1855.
Ten days after date I promise to pay Thomas E. Hamilton,
or order, one hundred and ninety-one, fifty cents, for money
borrowed.
H. H. Beardsley."
The foregoing is an exact copy, as appears from the amend-
ed transcript of the record filed in this court.
The first objection urged is, that the appeal from the county
court to the Superior Court was not properly perfected.
According to the amended record, the judgment was ren-
dered in the county court on the 27th of September, 1869,
the bond was approved by the county judge, and filed by the
county clerk on the 16th of October, and on the 18th of Oc-
tober was filed in the office of/the clerk of the Superior Court.
The act establishing the county court, prescribes that ap-
peals may be taken from its judgments in the same manner as
from judgments rendered by the probate court. (Sess. Laws
1849, sec. 13, 65.) Appeals were taken from the judgments
of the probate court as from the judgments of justices of the
peace. (R. S. 1845, sec. 4, p. 426.) In appeals from justices
of the peace the appeal is perfected by filing a bond in the
356 Beardslf,y v. Hill. [Sept. T.,
Opinion of the Court.
office of the justice within twenty days from the rendition of
the judgment. (R. S. 1845, 323 and 324.)
This bond was filed in the clerk's office of the county court
within twenty days from the judgment and approved by the
county judge. In the performance of this duty he acted as a
justice in a similar case. The appeal was then perfected on
the part of appellant, and no summons or notice was necessary
to the appellee. Boyd v. Kocher, 31 111. 295.
The neglect of the county judge, or of the clerk of the
county court, to file the bond in the Superior Court within the
time limited by the statute, does not defeat the appeal. This
was a mere ministerial duty on the part of the officer, the fail-
ure to perform which should not injure the appellant. Little
v. Smith, 4 Scam. 400.
According to the amended record the bond is not the indi-
vidual bond of Hamilton, who was the administrator at the
time of its execution. It is recited in the condition that he
was the administrator, and immediately following his signa-
ture are the letters "Adm'r/' clearly indicating the capacity in
which he signed it.
The bond is in the usual form, and recites that the appel-
lant shall pay whatever judgment may be rendered on trial or
dismissal of the appeal.
It is objected that it is defective in the omission of the lan-
guage required by the act of 1853: "to pay the judgment,
with costs, in the due course of administration." (Sess. Laws
1853, p. 267).
This objection should have been made in the court below
so that the necessary amendment might have been made. As
this was not done, it would be trifling with the rights of par-
ties to permit this mere technical advantage to reverse.
No objection was made to the bond in the court below until
after judgment by default.
The bond was not void ; it was voluntarily entered into,
and creates a liability according to its conditions and terms.
Fournier v. Faggott, 3 Scam. 347; Shayy v. Bedell, 5 Gilm.
1871.] Beardsley v. Hill. 357
Opinion of the Court.
88; Young v. Mason, 3 Gilm. 55; Smith v. Whitaker, 11 111.
417.
But it is assumed that any objection to the bond given upon
the appeal from the county court to the circuit court, may be
made for the first time in this court.
The statute which governs appeals from justices of the
peace, and which, to a certain extent, controls appeals from
the county courts doing probate business, provides that, if the
bond be adjudged insufficient, the party who shall have execu-
ted it shall not be prejudiced by such insufficiency, provided
he will, in a reasonable time, execute a sufficient bond.
The true construction of this statute is, that the appellee in
the court below, when he is in court, shall there present any
objections to the bond, and the delinquent party can not lose
his position until he has had a reasonable time to supply any
omission and perfect his bond.
Some of the objections now taken to the bond would have
been sustained in the court, and the principal obligor would
have been allowed to amend or file a new bond. We can not
permit any amendment, and it would be great injustice to
visit upon appellee the grave consequences of the omission, or
ignorance of officers, in the preparation of bonds.
We think that appellant must abide by his own neglect in
not making the motion to dismiss in apt time in the court
below. Such has been the ruling of this court. Fournier v.
Faggott, supra ; Young v. Mason, supra ; Sharp v. Bedell, su-
pra; Wear v. Kelleen, 38 111. 259.
It is next claimed that the court erred in rendering judg-
ment for costs against appellant, when the claim was filed
against the estate after the t^*m fixed for the adjustment of
claims.
The record of the proceedings in the county court is sin-
gularly barren. It does not state the time of the appointment
of the administrator, the date of the letters of administration,
or that any term was fixed for the adjudication of claims.
358 Beaudsley v. Hill. [Sept. T.,
Opinion of the Court.
There is no evidence that appellant was the administrator
until the allowance of the claim, when he appeared in that
capacity. It should affirmatively appear that the claim was
presented at some other than the regular term for the adjust-
ment of the debts of the deceased.
In this case there is nothing upon which to base a presump-
tion that the claim was filed irregularly.
The construction of the note raises a question of more diffi-
culty. It is contended by counsel for appellant that the legal
effect of the instrument was misconceived, and that the prom-
ise was to pay "$1,91 plus 50, equal to $2.41."
The court and jury construed the note to be a promise to
pay one hundred and ninety-one dollars and fifty cents. In
this construction there was no error.
The interpretation made by counsel for appellant is wholly
unintelligible and inconsistent with reason. We must deter-
mine the legal effect and hold that the word "dollars" was a
mere omission.
"Borrowed of I. S. £50 which I promise not to pay/' has
been held to be a note for the payment of £50. The word
"not" should be rejected. Bayley on Bills, ch. 1, sec. 2, p. 6.
A bill of exchange for "twenty-five, seventeen shillings and
three pence," has been held to be a bill for the payment of
twenty-five pounds, seventeen shillings and three pence.
Phipps v. Tanner, 5 Car. & Payne, 488.
In this case, Mr. Chief Justice Tindal said : "It must
mean pounds, and can not mean anything else."
In the case under consideration, the note must mean one
hundred and ninety-one dollars and fifty cents, or it is un-
meaning. 9
Our currency consists of dollars and cents. This note was
for a sum of money. That sum is not fifty cents, for then the
words "one hundred and ninety-one" would be useless.
From the manner in which the figures are divided, and
from the writing, the legal intendment is in favor of the con-
struction given by the Superior Court.
1871.] Holderman v. Graham et al. 3i 5 9
Syllabus.
The uncertainty in the language of this note is not so great
as in the following cases : .
"Please to pay the bearer, Joseph B. Clough, 37.89, and I
will account to you for the same."
It was held that the order was not so unintelligible as to be
void. Northrup v. Sanborn, 22 Ver. 434.
"For value received I promise to pay Galman Booth thirty-
two, twelve shillings and five pence, lawful money."
It was held that the word "pounds," after the words "thir-
ty-two," was necessarily implied. Booth v. Wallace, 2 Boot
(Con.) 247.
The judgment is affirmed.
Judgment affirmed.
Abraham Holderman
v.
Harriet E. Graham et al.
1. Partition — administrator *s sale — set aside — consent to decree. A bill
was filed for a partition among several tenants in common, and to set
aside a sale of the land by an administrator, and the court, on the hearing,
rendered an interlocutory decree setting aside the sale and decreeing that
a partition be made, and referring the case to the master, to take proof of
the use and occupation, payment of taxes, and improvements made by the
purchaser at the administrator's sale, the master reported, "and the court
rendered a final decree reaffirming the former decree and reciting that the
purchaser from the administrator consented to the rendering of the inter-
locutory decree; the court also started the account, and decreed the amount
the tenants in common should pay the purchaser at the administrator's
sale : Held, that the purchaser could not question the fact that he assented
to the interlocutory decree. Where a decree appears, from recitals, to be
assented to, it is not necessary that evidence of the consent should be pre-
served in the record. If not satisfactory, the party dissatisfied should pre-
serve the evidence on which the recital is based, and then it can be reviewed.
2. Account — rents — improvements. In such a case, where the master
is required to ascertain the rental value of a piece of land for a long period
360 Holderman v. Graham et al. [Sept. T.,
Opinion of the Court.
of time, he should receive proof as to the rental value for each year, and
not a mere average; as interest must be computed on the rents, the value
for each year should appear, and it was error for the court to average the
interest on the rents. And where an occupant was charged with rents, and
allowed for improvements, and the fences on his own land afforded the
means of enclosing the land on which he was charged rents, it was error
to charge full rents for the land and allow nothing for the use of his fences.
3. It would not, in such a case, be proper to allow for improvements
made after the account was ordered, even.if the occupant made them under
the supposition that they were placed on his own land, but in which he was
mistaken.
Appeal from the Circuit Court of Grundy county ; the
Hon. Josiah McEoberts, Judge, presiding.
Messrs. Harris & Dickey, and Messrs. Boyle & Richol-
son, for the appellant.
Mr. Benj. Olin and Mr. P. A. Armstrong, for the appel-
lee.
Mr. Justice Sheldon delivered the opinion of the Court :
This was a bill in chancery, filed in the circuit court of
Grundy county, by appellees against the appellant and other
defendants, for the partition of the west half northwest quar-
ter sec. 17, T. 33, R. 6, in said county, together with several
other tracts of land, and for the setting aside of an adminis-
trator's sale of said tract of land to the appellant, made by the
administrator of Timothy Horrom, deceased, for the payment
of the debts of his estate, on the 9th day of May, 1853, for
the sum of $800.
The bill prayed that the sale be set aside subject to the re-
funding to appellant of the $800 purchase money, with inter-
est, taxes, and the value of improvements made by him, after
deducting the rents and profits of the land.
On the 8th day of March, 1869, an interlocutory decree was
rendered, ordering partition, appointing commissioners to make
it, and setting aside the administrator's sale, and requiring the
appellant to execute to the heirs of said Horrom, deceased, a
1871.] Holderman v. Graham et al. 361
Opinion of the Court.
deed of said tract of land, upon the conditions that he be first
reimbursed said sum of $800, with interest thereon from the
said 9th day of May, 1853, and also the amount of taxes on
the land paid by him since the year 1853, and interest thereon,
and also the value of the improvements thereon made by him,
subject to his accounting to the heirs for the value of the rents
and profits, and for the use and occupation of the land from
May 9th, 1853, and interest thereon, and further ordering that
these matters be referred to the master in chancery to take
proofs thereon and report the same to the court.
Proofs were subsequently taken by the master and reported
to the court.
Afterwards, at the November term, 1870, a final decree was
rendered, which, after reciting at large the contents of the
former interlocutory decree, declares " each and every the
adjudications, findings and orders in said interlocutory decree,
are confirmed, and are to be taken and considered as if herein
inserted at length and in full, and to all which all of said de-
fendants assented;" and the decree adjudges, that the appel-
lant be charged with use and occupation of the land in the
sum of |2440.56, and that he be credited with the sum of
$2540.56 for purchase money, taxes, interest, and improve-
ments made upon the land, and that upon the payment to him
by the heirs of Horrom of the difference, $100, he make to
them a deed of the land.
The appellant in the first place seeks to question the pro-
priety of the interlocutory decree setting aside the administra-
tor's sale, but he is precluded from so doing, as that decree
was by his consent, as appears by the recitals in the final de-
cree.
But it is said this recital or finding of the court was excepted
to, and it is insisted that there must be proofs preserved in the
record, showing that the court was warranted in such finding.
The contrary has been held by this court. "When the court be-
low finds that all the material allegations have been proved, we
will, in the absence of anything rebutting the finding of the
362 Holderman v. Graham et al. [Sept. T.,
Opinion of the Court.
court, presume the evidence warranted the finding. Bree v.
Bree, 51 111. 367.
This court has repeatedly held it to be sufficient for the de-
cree to recite the facts on which it is founded, without any
further preserving in the record of the evidence on which the
facts were found. The appellant did except generally to the
findings of the court, but had he wished to take exception to this
particular finding, as to the fact of his assent to the interlocutory
decree, he should, to make it of avail, have preserved the evi-
dence upon that point by a bill of exceptions, and then we
could have passed upon the sufficiency of the evidence to
establish the fact as found, and determined whether the court
erred or not in its finding. The fact that the assent does not
appear by the interlocutory decree itself, we do not think suf-
ficiently rebuts the finding.
It is next objected that the court erred in finding that the
purchase money and taxes and interest thereon, and the value
of the improvements amounted only to the sum of $2540.56.
The appellant insists this sum should have been $2820.72.
The two allowances on both sides were of the sums in gross,
without any items being specified. The sum of $90, we think,
might properly have been deducted 'from the appellant's claim,
it being money expended in improvements subsequent to the
interlocutory decree, and subsequently to the commissioner's
sale of the land to Booth, which took place May 1, 1869.
Under the decree, an account was to be taken of improve-
ments already made, and not of any to be made afterwards.
They appear to have been innocently made by the appellant
under a mistake as to the line, he supposing the house stood
upon his own land; yet they should not have been allowed
under the decree.
There is no controversy as to the amount to be allowed for
purchase money, taxes and interest, and but little* as to the
improvements or their value, and not much conflict of testi-
mony. From an examination of it as it now appears, without
going into details, we think that the sum of $2762.72 should
1871.] . HOLDERMAN V. G RAH AM et dl. 363
Opinion of the Court.
have been allowed to the appellant, with a deduction from it
of the amount of the value of whatever fencing was upon the
land at the time appellant went into possession, and which he
appropriated to his own use.
The evidence as to that fencing is quite unsatisfactory, there
being testimony that there were no improvements at that time
except about four acres broke, and other testimony that there
was fencing on it equaling the amount the appellant put upon
it ; and, as the cause is to be remanded, we will not undertake
to determine in regard to the amount of that item.
It is again urged, that the court erred in decreeing that ap-
pellant be charged with the sum of $2440.56 for the use and
occupation of the premises.
The testimony upon this subject was very contradictory, and
was so upon several different points.
According to the showing of the argument of the counsel for
the appellees, there are eight witnesses on their behalf, whose
average estimate of the value to Holderman, of the use of the
land for sixteen years, commencing with 1853, is about $1.53
per acre per year, amounting, for the sixteen years, to the sum
of $1958.40, and it is said the difference between this and the
sum of $2440.56, found by the court, would be overcome by
the interest to be allowed to the heirs. But the proofs do not
furnish any satisfactory data upon which to compute interest,
as there is no estimate of the rent for the years severally.
There appears to have been a wide difference between the
value of the land at the commencement and at the termination
of that period of time, so far as a purchase at public sale may
be an index of value, as Holderman paid $10 per acre for it, at
the administrator's sale, and Booth $40.50 at the commissioner's
sale, and evidently the rent should be much less for the earlier
years in the series upon which interest would run longest,
than for the later ones.
Again, the value of the use of the land to Holderman was
not the proper measure of the rent with which to charge him.
The estimates of the witnesses are mostlv as to the value of the
364 Holderman v. Graham et al. [Sept. T.,
Opinion of the Court,
use of the land to him. But the inquiry should have been as to
the fair rental value of the land in the condition it was when
Holderman took possession of it, uninclosed, and without any
buildings upon it, and not what was the value of it to Hol-
derman.
In order to realize rents and profits from the land, it would
have been necessary to have enclosed it with a fence, and to
have fenced the Ottawa road, running through it, which would
have required 640 rods of fence. Holderman having lands
surrounding this, which were already enclosed with a fence, did
not need to fence this land himself, except the Ottawa road,
in order to its profitable use by him. It was by reason of his
own fences that the land was of use to him, and to charge him
with the value of such use, to him, would be making him pay
for the use of his own fences. At least, if he is to be charged
with rent on such a basis, he should be allowed a deduction
from it of the interest on the cost of the fences necessary for
the use of the land.
The above estimate is, on a partial view of the evidence, most
favorable to the appellees.
On the other hand, a large number of witnesses testify that
the use of the land for sixteen years, commencing with 1853,
would not have been worth more than the fencing around the
land, fencing the Ottawa road, and paving the taxes.
We are satisfied, from a consideration of all the proofs in
the case, that, according to the weight of the whole testimony,
there should be a considerable reduction made from the sum
found and decreed by the court for the use and occupation of
the land.
Having suggested, to this extent, the principles which should
govern in taking the account, the decree, so far as respects the
statement of the account, and the sums found due and to he
paid, will be reversed, and the cause remanded for further pro-
ceedings in conformity with this opinion.
Decree reversed.
1871.] Rain forth v. The People. 305
Svllabus. Statement of the ease.
Richard Rainfortii
v.
The People of the State of Illinois.
1. Evidence — admissibility of. Upon the trial of a party prosecuted
under an indictment charging him with obtaining money under false pre-
tenses, the prosecuting witness, the party alleged to have been defrauded,
testified that the prisoner represented he had a large quantity of nutmeg
graters and weatherstrips, and that he was induced, by his representations
as to the profits arising from the sale of them, to embark in the business
with him, and that he paid him $200. On cross-examination, the witness
was asked: "Did you not get fifty-six dozen nutmeg graters?" Held, it
was error to refuse to permit the question to be answered. The prisoner
had the right to any testimony which might show his representations to
he true, and any evidence which showed that the property, or any part of
it, was owned by the prisouer, and was obtained by the prosecutor, should
have been received as explanatory of the character of the representations.
2. Jury — talcing written evidence with them on their retirement. The jury,
nn their retirement, were permitted to take a portion of the written evi-
dence introduced on the trial, but the court refused the application of the
prisoner to permit them to have the other written evidence. Without de-
ciding as to the propriety of the course pursued in permitting the jury to
take with them written evidence, this court holds that the action of the
circuit court in that respect was unjust to the prisoner; that all the writ-
ten evidence should have been taken by the jury, or none.
Writ of Error to the Criminal Court of Cook county :
the Hon. Henry Booth, Judge, presiding.
Richard Rainforth was prosecuted in the court below under
an indictment which charged him, substantially, as follows:
That he, on the 23d day of September, in the year of our
Lord one thousand eight hundred and seventy, in the county
and State aforesaid, with a view to obtain, and for the purpose
of obtaining, of and from Alexander L. Smith his money and
personal property, and for the purpose of selling to said Smith
one-half interest in the business then being carried on by
said Rainforth, did then and there unlawfully, knowingly,
designedly and falsely, pretend to said Smith that he, the said
366 Rainforth v. The People. [Sept. T.,
Statement of the case.
Rainforth, then and there owned, and had on hand in his busi-
ness, nine thousand feet of weather strips at No. 92 Washing-
ton street, in the city of Chicago, and that he then and there
had on hand and owned two hundred and fifty dozen nutinesr
graters, and that his, said Rainforth's business, was then pav-
ing him a profit of from §90 to §200 per week; whereas, in
truth and in fact, the said Rainforth did not then and there
own and have on hand, at No. 92 Washington street, in said
city, nine thousand feet of weather strips; and, whereas, in
truth and in fact, he, the said Rainforth, did not own and
have on hand two hundred and fifty dozen nutmeg graters;
and, whereas, in truth and in fact, the business of him, the
said Rainforth, was not then and there paying him a profit of
from 890 to $200 per week; and, whereas, in truth and in
fact, he, the said Rainforth, well knew the said pretenses to he
false, and that he, the said Smith, then and there believed
said pretenses to be true, and then and there relied upon the
same as being true, but was deceived thereby. By reason and
by means of which said false pretenses, he, the said Rainforth,
then and there unlawfully, knowingly and designedly, ob-
tained of and from said Smith one §20 United States note of
the value of $20, two §10 United States notes of the value of
§10 each, one §20 current bank bill of the value of §20, a cer-
tain bank check for §160, dated on the 1st day of September,
A. D. 1870, of the value of §160, the property of said Alexan-
der L. Smith, with the intent then and there to cheat and
defraud him thereof, contrary to the statute and against the
peace and dignity of the people of the State of Illinois.
The jury rendered a verdict of guilty, upon which the court
gave judgment and sentenced the defendant to four months
imprisonment in the county jail.
The defendant brings the record to this court and asks a
reversal of the judgment.
Messrs. E. & A. Van Buren, for the plaintiff in error.
Mr. Charles H. Reed, State's Attorney, for the people.
1871.] Rainforth v. The People.- 367
Opinion of the Court.
Per Curiam : The plaintiff in error was indicted for ob-
taining money by false pretenses.
The prosecuting witness, and the party alleged to have been
defrauded, testified that plaintiff in error represented that he
had a large quantity of nutmeg graters and weather strips, and
that he was induced, by his representations as to the profits
arising from a sale of them, to embark in the business with
him, and that he paid him $200.
It was a material inquiry whether or not plaintiff in error
was the owner and in possession of the property enumerated.
Every fact which tended to rebut the alleged false pretense
should have been submitted to the jury.
On cross-exam ina'tion, the prosecuting witness was asked :
"Did you not get fifty-six dozen nutmeg graters ?" The court
refused to permit the question to be answered. This was error.
The party charged had the right to any testimony which
might show his representations to be true. The gist of the
offense was the false pretense. Proof which showed that the
property, or any part of it, Was owned by plaintiff in error, and
obtained by the prosecutor, should have been received as ex-
planatory of the character of the representations.
A book containing advertisements of the business was found
upon the prisoner's table, and the contents of this book, to-
gether with letters of the parties and a written agreement be-
tween them, were read in evidence.
Upon the retirement of the jury, the court permitted them
to take the book, and refused the application of the prisoner
to allow them to have the other written evidence.
We shall not decide as to the propriety of the course pur-
sued, further than to remark that this action of the court was
unjust to the prisoner. All the written evidence read to the
jury should have been taken by. them, or none.
The judgment is reversed and the cause remanded.
Judgment reversed.
368 Yalandschoot v. Adams. [Sept. T.,
Syllabus. Statement of the case. Opinion of the Court.
William Valakdschoot
v.
John C. Adams.
1. New trial — verdict against the evidence. In this case, the verdict
of the jury is regarded as fully sustained by the evidence.
2. Jury — credibility of witness. The question whether a witness is
entitled to belief, is for the jury to determine.
Appeal from the Circuit Court of Rock Island county; the
Hon. George W. Pleasants, Judge, presiding.
This was an action brought by John C. Adams against Wil-
liam Valandschoot, to recover the sum of $25 lost by the
plaintiff and alleged to have come into the hands of the de-
fendant.
A trial by jury resulted in a verdict and judgment in favor
of the plaintiff for the amount claimed.
To reverse this judgment the defendant appeals.
Mr. John B. Hawley and Mr. William H. Gest, for the
appellant.
Messrs. Sweeney & Jackson, for the appellee.
Per Curiam: We are asked to reverse this judgment solely
on the ground that the verdict is against the evidence. It is
not against, but clearly sustained by the evidence, if the tes-
timony of Buse can be believed. Upon that question the jury
were, surely, the proper judges. They had the witness before
them, and thought him entitled to belief, and there is nothing
in this record showing he was not. No attempt was made to
impeach his character, and the statements which several wit-
nesses swear he made to them at different times during the
last two years, in regard to the matter in controversy, only
differ from his evidence in minor and immaterial particulars.
Judgment affi?vmed.
1871.] Parker v. Parker. 369
Syllabus. Opinion of the Court.
Andrew Parker
v.
Harriet N. Parker.
1. Divorce— jurisdiction. The designation of an applicant for divorce,
as "Harriet N. Parker, of Grundy county," is sufficient to give the circuit
court jurisdiction of the parties.
2. Jurisdiction — denial of, how sustained. The bill having shown
jurisdiction of the subject matter and the parties, will not be dismissed
upon motion supported by ex parte affidavits, nor upon demurrer.
3. Same — plea to the jurisdiction, before answer, should be interposed
supported by facts, giving opportunity for rebutting testimony and for
cross-examination.
4. Same — waiver. A defendant who, without pleading in the mode
prescribed by the practice in chancery, proceeds to answer over, waives
his objection to the jurisdiction.
5. Alimony. The courts grant alimony upon proof of the circumstan-
ces of the parties, and unless found excessive, decrees will not be dis-
turbed. The same courts may afterwards modify, on proof of such change
as renders the amount excessive.
Writ of Error to the Circuit Court of Grundy county;
the Hon. Josiah McRoberts, Judge, presiding.
Mr. O. C. Gray, and Mr. E. W. Dewey, for the plaintiff
in error.
Mr. W. T. Hopkins and Mr. B.C.Cook, for the defendant
in error.
Mr. Justice Walker delivered the opinion of the Court :
•Defendant in error filed a bill for a divorce against plain-
tiffin error, in the Grundy circuit .court. The ground relied
upon was extreme and repeated cruelty, coupled with deser-
tion. A summons was issued to and served by the sheriff of
DeKalb county. A motion to dismiss the suit was entered,
upon the ground that the court did not have jurisdiction of
the person of complainant as her residence was in DeKalb
24— 61stIll.
370 Parker v. Parker. [Sept. T.,
Opinion of the Court.
county at the commencement of the suit, which was overruled
by the court. Plaintiff in error then filed a demurrer to the
bill which was also overruled. An answer having been filed
denying the material allegations of the bill, a trial was had by
the court and a jury, resulting in a verdict in favor of com-
plainant. The court thereupon rendered a decree dissolving
the marriage contract and awarding the custody of Hattie, one
of the children, to complainant, and decreeing her an annuity
of $400, payable quarterly, for the support of herself and
child. To reverse that decree the record is brought to this
court and errors are assigned.
It is first urged that the court should have dismissed the
suit for the want of jurisdiction. The record shows that one
of the attorneys for plaintiff in error filed in the court below
an affidavit, in which he states that plaintiff in error was then,
and had been for several years, a resident of DeKalb county;
"that his home is there, and that said place is also the home
of said Harriet N. Parker, and has been for some years last
past." Even if this affidavit showed facts sufficient to over-
come the recital in the bill that she was, at the time it was
filed, "of the county of Grundy," still it is not proper practice
to dismiss a bill on a mere motion for want of jurisdiction
unless it appears on the face of the bill.
It is true, that the last clause of the 2d section of the di-
vorce law requires the proceedings to be had in the county in
which the complainant resides ; but where the objection ex-
ists that the suit is not brought in the proper county, it may
be waived by the defendant, and unless raised in the mode
prescribed by the practice in chancery, it must be treated as
abandoned. In a court of equity, when the want of jurisdic-
tion appears on the face of the bill, it may be reached by de-
murrer, and when it does not then the objection should be
raised by plea to the jurisdiction. It is said, "that an objection
on the ground of jurisdiction must be taken either by demur-
rer or plea, before answer, otherwise the court will entertain
1871.] Parker v. Parker. 371
Opinion of the Court.
the suit, although the defendant may object to it at the hear-
ing:, unless it is in a case in which no circumstances whatever
can give the court jurisdiction." Danl. Ch. Pr. vol. 2, p. 140.
In this case, the want of jurisdiction does not appear on the
face of the bill, as it alleges that complainant is of the county
of Grundy, from which it was manifest to the court that there
was jurisdiction. And plaintiff in error failing to plead facts
showing the want of jurisdiction, and answering to the merits
of the bill, the court below did right in proceeding with the
trial of the cause. It was held, in the case of Peeples v. Pee-
bles, 19 111. 269, that an objection of this kind was dilatory in
its character and should have been raised before answer.
There is no force in the objection inasmuch as Ave must pre-
sume that, on the motion, the evidence justified the decision
of the court, and although the practice was irregular, still,
plaintiff in error is bound by it as no plea was filed, and an
answer was interposed.
It follows, from the authority referred to, that there was no
error in overruling the motion to dismiss. When the question
is raised by plea, the issue can be more fairly tried on deposi-
tions or oral evidence, subject to cross-examination, than by
loose ex parte affidavits. A question of residence is frequently
one of much difficulty, depending on a variety of circumstan-
ces too complicated to be satisfactorily tried by ex parte evi-
dence. It is an important issue to the parties, and deserves
to be as fairly tried as others connected with the case.
As to the question of alimony, we are not prepared to hold
that it is so unreasonably large as to require its reduction.
The court below had before it all the evidence, and no
doubt regarded it but reasonable and just. But if, from the
change of times or the circumstances of the parties, it should,
in the future, become unreasonable or oppressive, he can, un-
der the 6th section of the divorce law, apply to the court and
have it modified. Nor do we see that the objection is well
taken, that the court undertook to control the services of
plaintiff in error. The court only decreed that he should, in
372 Farwell et al. v. Metcalf. [Sept. T.,
Syllabus.
discharge of a legal duty, pay a certain sura every three
months to defendant in error. It does not order him to labor
to earn it. He is left at liberty to raise the means by the sale
of his personal property or real estate, or produce it from his
regular pursuits, as may suit his inclination or his interest.
He is in the same situation precisely as is any debtor against
whom a decree for the payment of money in instalments is
required to be made. It can not be that the court would
have no power to decree alimony in money, simply because the
defendant has no productive property, as seems to be contended
by counsel, or even if he was destitute of property. Mere
want of means does not release a father from the duty of sup-
porting his helpless infant children, or from contributing to
the support of a wife who is divorced for his unmanly abuse
and cruelty, and especially so when he may have obtained a
large amount of means from his wife. But in such cases the
court will be governed by the circumstances and condition of
the parties. But for aught that appears in the record, plain-
tiff in error may have been in the receipt of a large income.
AVe perceive no error in this record, and the decree of the
court below is affirmed.
Decree affirmed.
John V. Farwell et al.
v.
Horace C. Metcalf.
1. Case — declaration — scienter — demurrer. Where the declaration
in an action for deceit in falsely representing a third person fit to be trusted,
averred that the defendant intended fraudulently to deceive and injure the
plaintiff, and that the representations made by him were falsely, fraudu-
lently and deceitfully made, and defendant well knew the parties were not
1871.] Farwell et al v. Metcalf. 373
Statement of the case.
fit to be trusted: Held, that this declaration was substantial^' good,
although, in the averment negativing the truth of the representations, it is
not averred that the defendant knew them to be false, and it was error to
sustain a demurrer to such a count in a declaration.
2. Counts which aver that the representations were made with in-
tent to deceive and defraud the plaintiff, but omit to aver in terms that
defendant knew the insolvency of the parties to whom the credit was given,
are substantially good, and are not obnoxious to a demurrer. Such words
import knowledge.
Writ of Error to the Superior Court of Cook county.
This was an action on the case brought by John V. Far-
well, Charles Farwell, William D. Farwell and John K. Har-
mon, in the Superior Court of Cook county, against Horace
C. Metcalf.
The- declaration contained three counts, and averred that
plaintiffs were wholesale merchants, and that R. Hoag & Co.
applied to them for credit on the sale of goods, and that de-
fendant, contriving and fraudulently intending to deceive and
injure plaintiffs, falsely, fraudulently and deceitfully informed
plaintiffs that William E. Hoag, a member of the firm of R.
Hoag & Co., had been in pecuniary trouble in his business
matters, but had got all such matters settled, and thereby in-
duced plaintiffs to sell to R. Hoag & Co. a bill of goods on
credit, when W. E. Hoag was in fact insolvent.
The second and third counts proceed upon similar represen-
tations and sale.
Defendant filed a demurrer to the declaration, which the
court sustained, and plaintiffs abiding by their declaration, the
court rendered a judgment ^in bar of the action, to reverse
which this writ of error is prosecuted.
Messrs. Wilkinson, Sackett & Bean, for the plaintiffs in
error.
Messrs. Eldridge & Tourtelotte, for the defendant in
error.
374 Fabwell et al. v. Metcalf. [Sept. T.,
Opinion of the Court.
Mr. Justice Thoenton delivered the opinion of the Court :
A demurrer was sustained to the declaration in this case,
and the action of the court in this regard is the only question
for consideration.
The first count is according to the most approved precedents,
with one exception. In the stating part of the declaration, it
avers the fraudulent intent to deceive and injure the plaintiff's,
and that the representations were falsely, fraudulently and de-
ceitfully made, and that the defendant well knew that the
parties were not fit to be trusted.
But in the portion of the declaration which negatives the
truth of the representations, the statement that the defendant
knew that the parties to whom the credit was given were in
bad and insolvent circumstances, is omitted. In other respects
the representations are fully negatived.
This count is formally good. Even if the use of the word
" fraudulently" is not a sufficient averment of the scienter, the
previous averment, that the defendant well knew that the par-
ties were not to be trusted, is sufficient.
The second and third counts aver that the representations
were made with intent to deceive and defraud the plaintiffs, but
omit to charge, in terms, that the defendant knew the insol-
vency of the parties to whom the credit was given.
The question is, therefore, presented as to the meaning and
effect of the words " fraudulently and deceitfully," and "with
intent to deceive and defraud."
Deceit excludes the idea of mistake, and fraud has been
termed a grosser species of deceit. Deceit is a fraudulent mis-
representation, by which one man deceives another, to the in-
jury of the latter. AVhere false statements are made, with
intent to deceive and defraud, the necessary implication is, that
the person making such false statements, with such intent, has
a knowledge of their falsity. Otherwise the false character of
the representations, and the intent to deceive, could not co-
exist.
1871.] Far well et al. v. Metcalf. 375
Opinion of the Court.
Fraud has been defined to be "any cunning, deception or
artifice, used to circumvent, cheat or deceive another." It is
inconceivable how fraud could actually exist, as charged, in all
its deformity, in the declaration, and yet that the defendant did
not know that his representations Avere false.
The principles which govern in this form of action were
fully examined in Presley v. Freeman, 3 Term R. 51.
Mr. Justice Buller said, " The foundation of the action is
fraud and deceit in the defendant, and damage to the plaintiff.
Every deceit comprehends a lie, but a deceit is more than a
lie."
Fraud practiced, and damage resulting therefrom, will sus-
tain the action. Upton v. Vail, 6 Johns. 181.
It would seem to follow, as a necessary implication, if
fraud and deceit are broadly charged, the declaration ought to
be sustained.
It is also laid down in 1 Chitty's Plead. 338, that the aver-
ment that the representations were fraudulently made might
be a sufficient averment of the scienter. The same rule is
stated in 2 Saund. Plead. & Ev. 60.
In actions at law for deceit in falsely representing a third
person fit to be trusted, the scienter must be substantially alleged,
and must always be proved.
The averment that the representations were made fraudu-
lently, and with the intent to deceive and defraud, must be re-
garded as equivalent to an averment of the scienter, and the
knowledge of the falsity of the representations musi be proved
as fully as if the declaration were in the usual form. Evans
v. Edmoyids, 76 E. C. L. Ill/, Terrell v. Bennet, 18 Geo. 404.
The declaration is substantially good, and the demurrer
should have been overruled.
The judgment is reversed and the cause remanded.
Judgment reversed.
376 Akers v. George. [Sept. T.,
S}rllabus. Statement of the case.
George "W. Akers
V.
David George.
Cattle running at large — under act of 1867. In an action of re-
plevin for the alleged wrongful taking and detention by the defendant of
ninety head of cattle belonging to the plaintiff, the defendant justified the
taking and detention of the cattle under the act of March 7, 1807, entitled
"An net to prevent domestic animals from running at large in the coun-
ties of Monroe, St. Clair and other counties." It appeared the plaintiff's
cattle were in the field of one Dement, with the consent of the latter, and
that they passed thence upon the premises of the defendant, through a
breach in the partition fence made by the cattle of the defendant where
they were taken up by him: Held, the breach thus made, it was the duty
of the defendant to repair, and under such circumstances he had no more
right to take up and hold the plaintiff's cattle under the act mentioned,
thus trespassing on his land, than he wTould have had if the breach in the
fence had been made by the defendant himself instead of b}^ his cattle.
Appeal from the Circuit Court of Lee county; the Hon.
William W. Heaton, Judge, presiding.
This was an action of replevin, brought by Akers against
George, for the alleged wrongful taking and detention, by the
defendant, of ninety head of cattle belonging to the plaintiff.
The defendant justified the taking of the cattle under the
act of March 7, 1867, entitled "An act to prevent domestic
animals from running at large in the counties of Monroe, St.
Clair and other counties."
The cattle were taken up by the defendant while upon his
premises, they having passed thereon from the enclosure
wherein they were grazing.
To the pleas of the defendant the plaintiff filed an amended
additional replication, as follows:
That defendant ought not to avow said taking of said cat-
tle, etc., in the place in which, etc., and justly, etc., by reason
of anything in said amended second plea and additional plea
contained, because he says that, at said time, when, etc., said
1871.] Akers v. George. 377
Opinion of the Court.
lands of defendant in said pleas mentioned adjoined the cer-
tain lands of plaintiff and one John Dement; that before, and
at the time when, etc., said lands of plaintiff and John Dement
were enclosed by an outside fence, and made and composed
one common field, were not separated or divided by any par-
tition fence, and before then had been, and then were, used,
oecupied and enjoyed by plaintiff with the consent and knowl-
edge of said John Dement; that before said time, when, etc.,
between said lands of defendant and said lands of said John
Dement there had been erected a partition fence dividing and
separating said lands of defendant from said lands of said
John Dement; that, on September 26, 1869, the cattle of
defendant broke down said partition fence ; that, thereupon,
it became and was the duty of defendant to repair and ren-
der sufficient to turn cattle, said fence so broken down, but
defendant, notwithstanding his said duty, suffered and permit-
ted said fence to continue and remain broken down, destroyed
and insufficient to turn cattle as aforesaid; that said cattle of
said plaintiff, in said declaration mentioned, were, just before
the said time when, etc., upon said lands of plaintiff and said
lands of said John Dement, and that, by reason of the said
fence having so remained and continued broken down, des-
troyed and insufficient to turn cattle, said cattle of plaintiff
escaped into, and were, at said time, when etc., upon said
lands of said defendant, and were then and there taken, etc.,
as in said plaintiff's declaration alleged.
To this replication the court sustained a demurrer. Upon
a trial of the cause by the court, a jury being waived, the is-
sues were found for the defendant. The plaintiff appeals.
Messrs. Eustace, Barge & Dixon, for the appellant.
Mr. James K. Edsale, for the appellee.
Per Curiam : There was error in sustaining the demurrer
to the amended additional replication. It shows that plain-
tiffs cattle were in Dement's field with the consent of the
378 Carey v. Henderson et al., etc. [Sept. T.,
Syllabus. Opinion of the Court.
latter, and they passed thence upon the premises of the defend-
ant through a breach in the partition fence, made by the cat-
tle of the defendant himself. The breach thus made, it was
his duty to repair. Under such circumstances the defendant
had no more right to take up and hold plaintiff's cattle un-
der the act of 1867, entitled ''Domestic Animals," than be
would have had if the breach in the fence had been made by
the defendant himself, instead of by his cattle.
The judgment is reversed and the cause remanded.
Judgment reversed.
Ezra Carey
v.
Franklin Henderson et at. for use, etc.
1. Evidence — as between co-defendants. In a suit in the names of two
for the use of one of them, in which the one not having interest testified
against his co-plaintiff, it is competent to contradict or impeach him hy
other witnesses.
2. Same — token contradictory. When evidence is contradictory, involv-
ing the credibility of witnesses, the question is one peculiary for the jury,
and their verdict should not be disturbed.
8. Same — legal presumption. Whether a witness swears mistakenly, or
knowingly falsely, is a question of fact for the jury, and not one of law.
Appeal from the Circuit Court of Livingston county; the
Hon. ChaPvLES H. Wood, Judge, presiding.
Mr. Thomas L. Tipton and Mr. L. E. Payson, for the
appellant.
Messrs. Pillsbury & Lawrence, for the appellees.
Mr. Justice Sheldon delivered the opinion of the Court:
One of the errors assigned on the record in this case is, that
the verdict of the jury was manifestly against the evidence.
1871.] Carey v. Henderson et al, etc. 379
Opinion of the Court.
The case, in brief, is as follows: In June, 1866, Henderson
& Lane, the appellees, purchased of the Carey Brothers, John,
Samuel and William, sons of Ezra Carey, the appellant, a lot
of hogs, amounting to about $400, and shortly afterward a lot
of cattle, amounting to about $200. The Carey Brothers sued
appellees, in the McLean circuit court, and on January 27th,
1868, recovered a judgment against them for $458.76, Lane
having paid enough on the stock out of his store to reduce the
indebtedness of appellees for the stock so purchased to that
amount. Execution issued on the judgment and was paid by
Henderson August 8th, 1869, who, after such payment, brought
this suit in the name of Henderson & Lane, for his use, against
Ezra Carey, the father, claiming that Lane had paid the money
for the stock to Ezra Carey, and that the latter loaned the
money back to Lane, individually.
According to the testimony of Henderson, he, with Lane,
went to Ezra Carey's for the purpose of buying some fat hogs,
who referred him to the boys in the field; that he went with
Lane and made the purchase of them, telling them he was go-
ing to Chicago Avith the hogs that night, and would pay them
for the hogs on his return, which would not exceed three days;
that after this they bought the cattle; that he paid to Lane all
the money for the hogs and cattle due to the Careys, to pay over
to them ; that on the 2d day of December, 1 866, he had an
interview and conversation with Ezra Carey on the subject,
when Carey, after stating that Lane was indebted to him about
$600, said, "I will tell you just how it was; the money was
for the stock that you and he bought, but Lane came to me
with the money and settled,, up for the stock, counted the
money out to me on his* knee, and offered it to me in his hand,
and at the same time asked me for the loan of it, and I let
him have it, and felt just as safe as though I had put it in the
bank."
George Falkingham testifies to the same admission sub-
stantially, on the part of Ezra Carey, in a conversation he had
with him about January 12, 1867.
380 Carey v. Henderson et al, etc. [Sept. T.,
Opinion of the Court.
The witness Frankenburg testifies in regard to the same con-
versation, that Carey was telling Falkingham that Lane was
owing him for stock, and that it was good hick that it was not
more, as he could have got more money if he had asked for it.
It is first objected that the facts, as testified to by Hender-
son and Falkingham, would not authorize a recovery against
appellant. But they were sufficient to justify the conclusion
that the money due for the stock was paid over by Henderson &
Lane to Ezra Carey, and received by the latter, and immediately
loaned to Lane ; and if Ezra Carey had no authority to receive
the money for the Carey Brothers, then he would be liable to
Henderson & Lane, as for money had and received to their
use.
The testimony of Ezra Carey was in full denial of that of
Henderson and Falkingham.
It was a case, then, of the unsworn statements of the defend-
ant against his sworn statement, and the jury saw fit to give
credence to the former over the latter.
There was much testimony corroborative of that of Hen-
derson and Falkingham to this extent, that Ezra Carey was
claiming an indebtedness of about this amount to be due from
Lane to him, and expressed much concern lest he should lose
it, on account of Lane's failure in business, which took place
about the 25th of December, 1866; and Henderson seems to
have had no intimation that he was looked upon as liable until
about the 20th of January, 1867, although almost daily meet-
ing with the Careys, or some of them.
The testimony of Lane coincided with that of the defend-
ant, that no such payment as that claimed by Henderson was
ever made or offered. But the credit of Lane is impeached
by the testimony of Reuben and Jesse T. Williams, who both
testify to an admission of Lane, in the summer of 1868, that
Henderson paid the money for the stock bought of the Carey
brothers, to him, Lane, and that he, Lane, took it to Ezra
Carey and settled with him for the stock, and paid him, and
then borrowed it back of him for himself.
1871.] Carey v. Henderson et aL, etc. 381
Opinion of the Court.
It was further in testimony, that there was a state of ill-
feeling between Lane and Henderson, growing out of a claim
of $50 of the former against the latter, which was in suit be-
tween them.
And here a point is made, that the court erred in admitting
the testimony of Reuben and Jesse Williams to impeach that
of Lane, because the latter was a co-partner and a co-plaintiff
with Henderson in the suit. No authority is cited in support
of the position, and we are aware of no principle to sustain
it. The suit is brought in the name of Henderson & Lane,
for the use of Henderson — the latter is the real party to the
action. When Lane is admitted on behalf of the defendant,
to give testimony adverse to the claim sued on, no reason is
perceived why Henderson should not be permitted to introduce
the contrary statements of the former in discredit of his testi-
mony.
There was much contradictory testimony in the case; the
credibility of witnesses was largely involved ; the question was
one peculiarly for a jury, and they have passed upon it. We
can not say that their verdict is so manifestly against the evi-
dence that it should be disturbed.
We do not perceive any error in the modification of defend-
ant's eighth instruction, which is assigned as error.
The modification consisted in striking out the following con-
cluding words of the instruction: "then the jury shall so
reconcile them, for the law will presume mistake or misunder-
standing before positive perjury."
There is no presumption of law on the subject. Whether
a witness swears mistakenly, or knowingly falsely, is a question
of fact for the jury, and not one of law.
It is also assigned as error, that the damages are excessive
to the extent of $3.27, arising from allowing as damages the
anioun^ paid by Henderson to satisfy the judgment against
Henderson & Lane, on the 8th day of August, 1868, with in-
terest from that time, instead of the amount of the judgment
with interest from the time of its rendition, January 27, 1868.
382 Wright p. The People. [Sept. T.,
Syllabus.
But the judgment recovered is only for §543.23, and so long
as it is less than the amount of the money of Henderson &
Lane, received by the defendant, to wit, $600, and is no more
than the sum actually paid by Henderson in order to discharge
the indebtedness of Henderson & Lane to the Carey brothers,
and interest thereon, we do not see that the defendant has any
just ground of complaint that the damages are excessive.
The judgment is affirmed.
Judgment affirmed.
Mr. Justice Scott dissenting.
Moses C. Wright
V.
The People of the State of Illinois.
1. Commission merchant — demand by consignor — construction of act of
1869. The act of March 4, 1869, entitled an act for the protection of con-
signors of fruit, grain, flour, etc., to be sold on commission, which pro-
vides that any warehouseman, storage, forwarding or commission mer-
chant who, having converted to his own use the proceeds or profits aris-
ing from the sale of any goods otherwise than as instructed by the con-
signor of the goods, on demand of the consignor fails to deliver over the
proceeds or profits of such goods after deducting the usual per cent on
sales as commissions, shall be guilty of a misdemeanor, etc., being a penal
statute, must receive a strict construction, and an actual demand to be
made by the consignor upon the commission merchant is an indispensable
pre-requisite to a conviction under it.
2. Same — sufficiency of demand. In such a prosecution the complain-
ing witness testified that, when he went to the place of the accused, the
latter said : "I know what you have come for, but it is impossible for me
to pay you anything now." The witness stated that the accused knew
well enough what he had come for, and this was all the demand he claimed
1871.] Wright v. The People. 383
Statement of the case.
to have been made : Held, that, while in a civil cause where a demand
was necessary, such evidence might be sufficient for a jury to find a waiver,
yet, in this action, it was insufficient. The demand should be made in
such a manner as to fairly apprise the merchant that he would be subject
to the penalties of the statute if he failed to comply.
Writ of Error to the Criminal Court of Cook county;
the Hon. Joseph E. Gary, Judge, presiding.
This was a prosecution against Moses C. Wright, on an
indictment found under the act of March 4, 1869, for the pro-
tection of consignors, etc. The indictment was as follows :
State of Illinois, county of Cook, — ss. Of the December
term of the Criminal Court of Cook county, in said county
and State, in the year of our Lord one thousand eight hun-
dred and seventy.
The grand jurors chosen, selected and sworn, in and for the
county of Cook, in the State of Illinois, in the name and by
the authority of the people of the State of Illinois, upon their
oaths, present that Moses C. Wright, late of said county, on
the 1st day of November, in the year of our Lord one thousand
eight hundred and seventy, in the county and State aforesaid,
being then and there a commission merchant, did unlawfully
convert to his own use the sum of $61, the property of Abijah
Birdsey, the same being then and there the proceeds arising
from the sale of a certain quantity of peaches before then con-
signed by said Birdsey to said Wright, otherwise than as in-
structed by said Birdsey, the consignor thereof, and that he,
the said Moses C. Wright, then and there unlawfully failed to
deliver over the proceeds aforesaid after deducting the usual
per cent on the sale of said peaches as commission, on demand
then and there made therefor by the said Abijah Birdsey,
contrary to the statute and against the peace and dignity of
the same people of the State of Illinois.
A trial by jury at the February term, 1871, of the court
below, resulted in a verdict of guilty, and the defendant was
adjudged to pay a fine of §100.
384 Weight v. The People. [Sept. T.,
Opinion of the Court.
The defendant brings the record to this court and asks a
reversal of the judgment.
Mr. Sidney Thomas, for the plaintiff in error.
Mr. Charles H. Keed, States Attorney, for the people.
Per Curiam : The statute of 1869, under which the indict-
ment in this«case was found, declares that, "If any warehouse-
man, storage, forwarding or commission merchant, or his or
their agents, clerks or employees, shall convert to their own
use the proceeds or profits arising from the sale of any fruits,
grain, flour, beef, pork, or any other goods, wares or merchan-
dise, otherwise than as instructed by the consignor of said
goods, and shall, on the demand of the consignor, fail to de-
liver over the proceeds or profits of said goods after deducting
the usual per cent on sales as commissions, shall be deemed
guilty of a misdemeanor," etc.
This statute being penal in its nature, must receive a strict
construction. An actual demand, to be made by the con-
signor upon the commission merchant, is an indispensable pre-
requisite to a conviction.
The complaining witness testifies that, when he went into
the place of the accused, in Chicago, the latter said: "I know
what you have come for, but it is impossible for me to pay you
anything now." The witness stated that the accused knew
well enough what he had come for, and this was all the de-
mand he claimed to have been made.
In a civil cause, where a demand was necessary, such evi-
dence might be sufficient for a jury to find a waiver.
But the statute under consideration requires both a wrong-
ful conversion of the proceeds and a failure to deliver them
over after a demand made by the consignor, to constitute the
offense.
The demand should be made in such a manner as to fairly
apprise the merchant that he would be subject to the penalties
of the statute if he failed to comply, else he might, by the
1871.] C, B. & Q. R. R. Co. v. Dunn. 385
Syllabus.
very course of dealing assented to by the consignor, be en-
trapped into the consequences of a criminal offense unawares,
and without any wrong intention. Such a result would be
repugnant to the spirit of our criminal code, and, as we be-
lieve, to the intention of the statute in question.
The evidence was not sufficient to sustain the verdict, and
the court should have granted a new trial.
The judgment of the court below must be reversed and the
cause remanded.
Judgment reversed.
The Chicago, Buklington & Quincy Railroad Co.
v.
James B. Dunn.
1. Negligence — contributory — compared. Where, in a suit to recover
for injuries sustained by a collision with a railroad train, and, from the evi-
dence, it is contended there was negligence on both sides, and that is the
principal contest before the jury, it is error for the court to instruct the
jury that the plaintiff may recover if there was negligence on the part of
the servants of the company, unless the plaintiff was guilty of more care-
lessness than the servants of the company. In such cases, if both parties
are guilty of negligence, and it appears that of the plaintiff is slight, when
compared with that of the defendant, a recovery may be had.
2. An instruction is not correct which informs the jury that a plaintiff
in such a case may recover, if the negligence of the defendant is greater
than his. In such a case, to recover, there must be more than a mere pre-
ponderance against the defendant; his must be great, and plaintiff's slight,
when compared.
3. Carriers op persons — diligence. Carriers of persons are bound to
use the highest degree of care and diligence consistent with the practical
exercise of the business of carriers, and a person not a passenger is entitled
to no higher degree of care from them than a passenger; and in such a
case it is error to instruct the jury that the employees of the road were
bound, as far as possible, to prevent injury to a person about crossing the
track in front of a train.
25— 6 1st III.
386 C., B. & Q. R. R. Co. v. Dunn. [Sept. T4
Opinion of the Court.
4. Instruction. Where one instruction is clearly wrong, and another
right, the error of the first is not cured by giving the latter, as it can not
be known which governed the jury in finding their verdict.
Appeal from the Circuit Court of Henderson county ; the
Hon. Arthur A. Smith, Judge, presiding.
Messrs. Lanphere, Frost & Simpson, for the appellants.
Messrs. Kitchell & Arnold, for the appellee.
Mr. Justice Walker delivered the opinion of the Court:
On the trial of this case in the court below the contest was
principally a question of negligence of both parties. Appellee
contended that it was from the negligence of appellants that
the injury was caused, whilst they contended that it was by
reason of the want of care on the part of appellee.
From all of the evidence heard by the jury, it was a ques-
tion for them to determine whether there was negligence on
either side, or only on the part of appellants, or, if there was
contributory negligence, whether appellants were guilty of
such negligence as, when compared with that of appellee,
would greatly exceed the negligence of appellee.
This court, in many cases, has held that there may be such
comparative negligence, and still the defendant be liable; but
when the plaintiff has been guilty of negligence which con-
tributed to the injury, his negligence, when compared with
that of the defendant, must be slight.
Appellee asked and the court gave this instruction :
" 1. The plaintiff had the right to use the street crossing at
the time and the place stated in the evidence, for passing to his
residence, and the defendants, by their servants, had the right
to use their railroad at said crossing, and in this respect their
rights were equal, and the said defendants, at the time and
place of the injury, by its servants in charge of said engine,
were bound to keep a lookout at the crossing, so as to see and,
1871.] C., B. & Q. E. R. Co. v. Dunn. 387
Opinion of the Court.
as far as possible, prevent injury to the plaintiff in the exer-
cise of his right of transit across the railroad; and if the jury
believe, from the evidence, that the injury complained of re-
sulted to the plaintiff by the improper sounding of the whistle
of the engine when the said mules, and persons in the wagon,
were in close proximity to the engineer, and that such injury
could have been prevented by the exercise of a prudent fore-
sight in keeping a lookout upon said crossing, then the law is
for the plaintiff, unless the jury should also believe, from the
evidence, that the plaintiff was guilty of more carelessness
than the servants of the defendants."
It will be observed that this instruction violates the rule of
comparative negligence. It directs a recovery, even if there
was negligence on both sides, and it was equal, or rather the
instruction states appellee may recover unless his negligence
exceeded that of appellant.
It is the settled law of this court, announced in numerous
cases, that, where the plaintiff is guilty of negligence, to enti-
tle him to recover, it must be slight, when compared with that
of the defendant. This instruction was, therefore, calculated
to mislead the jury, and should not have been given. It also
announces that appellants were bound to the use of all possi-
ble care to prevent injury. This is the natural construction
of the language, and announces the rule too broadly in this
' class of cases.
In the case of Tuller v. Talbot, 23 111. 357, the rule was sta-
1 ted to be that, carriers of persons are held to the highest de-
| gree of care and diligence that is consistent with the practi-
cable exercise of their business of carriers.
Every possible care that the human mind is capable of ex-
ercising, without reference to cost or delay, would render the
business of common carriers impracticable, and deter all pru-
dent men from adopting it.
The court should have modified the instruction before it was
given. Appellee was not a passenger and the road did not
388 T., P. & W. R. W. Co. v. Hobble. [Sept. T.,
Syllabus.
owe any higher degree of care for his safety than to a passen-
ger, and what was said in Taller v. Talbot, supra, was in refer-
ence to passengers for hire. The company were bound to use
all reasonable and practicable care for appellee's safety, but not
every possible care.
Nor does the fourth of appellee's instructions cure the error
contained in the first. That announces a right to recover in
case of comparative negligence, but the rule is not accurately
stated. It states that a recovery may be had even if appellee
was guilty of negligence, if appellants were guilty of greater
negligence. This authorizes a recovery if the jury only be-
lieved the negligence of the company preponderated, however
slightly, when we have seen that such is not the rule. But
even had it stated the rule correctly, it would only have con-
tradicted the first instruction, and it would not have appeared
which the jury followed.
From all the evidence in the case, the verdict seems to
be large — to be disproportioned to the injury received, even
if appellants were guilty of such negligence as to render them
liable for the injury; but whether or not the evidence shows
such liability, we express no opinion, as that is a question fall-
ing within the province of the jury.
For the errors indicated, the judgment of the court below
is reversed and the cause remanded.
Judgment reversed.
Toledo, Peokia & Waksaw Eailway Co.
V.
Benjamin Hobble.
New trial — verdict against the evidence. In this case, the verdict of the
jury is regarded as sustained by the evidence.
1871.] Burr et al. v. Borden et al. 389
Syllabus.
Appeal from the Circuit Court of Peoria county; the Hon.
S. D. Puterbaugh, Judge, presiding.
This was an action on the case, brought by Hobble against
the railway company to recover the value of a horse killed by
a train of cars on the railway of the defendant, through the al-
leged negligence of the latter. A trial by jury resulted in a
verdict and judgment in favor of the plaintiff for $160, to
reverse which judgment the defendant appeals.
Messrs. Ingersoll & McCune, for the appellant.
Messrs. McCulloch & Eice, for the appellee.
Per Curiam : No question of law is presented for our con-
sideration.
We have reviewed the evidence and affirm the judgment.
Judgment affirmed.
William E. Burr et al.
John Borden et al.
1. Sale under power in mortgage — advertisement. Where a mort-
gage sale is announced to be held on the 1st day of March, 1860, between
the hours of nine a. m. and four p. m-., the advertisement is sufficient, the
hours belonging to the ordinary business portion of the day.
2. Sale on credit — its validity. Where such a sale is advertised as
for cash, and at the sale the mortgagee states that he will not start it at less
than the amount of the mortgage, and a third party bids that amount,
there being no other bidders, and after it is Struck off to him the mort-
gagee gives him credit on his bid, and there is no proof that this was
done in pursuance of a previous arrangement, such an extension of pay-
ment, whatever it may be, is wholly immaterial and does not vitiate the
sale.
390 Burr d al. v. Borden d al. [Sept, T.,
Syllabus.
:j. It sccnis that, even if there had been an understanding between them
previous to the sale, that, as to the amount going to the mortgagee, the
intending purchaser might, in case he should purchase, consider it a loan
at ten per cent, such an arrangement would not, of itself, have vitiated
the sale; for, even if it occurred, it did not injure the mortgagor, but was
for his benefit.
4. Fraudulent sale — evidence required. Where it is charged that the
purchaser at a mortgage sale really bought the property for the mort-
gagee and not for himself, but being called by the complainants as witnesses,
both emphatically deny it, but about a jTear and nine months after the sale
the purchaser, who had meantime been drawing the rents of the property,
then conveyed the fee to the mortgagee, the inference from such a con-
veyance is not so strong as to overturn their positive testimony.
o. Degree of fraud — rule amended. Instead of saying that sales un-
der a power in a mortgage will be set aside on "the slightest proof of fraud
or unfair conduct," the rule would be more accurateby stated by saying
"upon proof of the slightest fraud or unfair conduct." But in a case of
this kind, as well as in any other, a court must fairly weigh the evidence,
and can not set aside a sale merely upon slight proof of unfairness, if met
by preponderating evidence on the other side.
6. Comparison of equities. In all cases of this character, where the
sale is attacked, not as simply void for non-compliance with the power, but
as voidable on equitable considerations having reference to the unfair
mode in which the power has been executed, the decision must turn on a
comparison of the equities.
7. Innocent purchaser — wlien protected. Where laud was sold in
1860 for substantially its full value, and in 1867 the property, having, in
the meantime, risen almost five-fold in value, was sold to an innocent pur-
chaser at this advanced rate, and he erected upon it a very costly building,
a bill filed eight years after the sale by parties who, until that time, had
acquiesced in all these proceedings, and no actual wrong or intentional
fraud is shown, can not be sustained in equity.
8. Acquiescence — application to facts. Especially should the doctrine
of acquiescence be favorably regarded in this State where the value of
real estate is so rapidly changing, and persons are under strong temptation
to search for defects in sales made years ago in payment of debts, and with
which the debtors, at the time, were perfectly content, and where all par-
ties affected by the sale have remained for years equally silent and satis-
fied. Long experience has clearly shown this rule to be necessary in or-
der to prevent a great mass of vexatious litigation, singularly destitute of
merit because generally instituted by persons who have bought for a trifle
some dormant and forgotten claim.
1871.] Burr et al. v. Borden et al. 391
Opiniou of the Couri.
Writ of Error to the Superior Court of Cook county; the
Hon. John A. Jameson, Judge, presiding.
Messrs. Moore & Caulfield and Mr. H. C. Pindell, for
the plaintiffs in error.
Messrs. Barker & Wait, Mr. William Hopkins and Mr.
Geo. F. Bailey, for the defendants in error.
Mr. Chief Justice Lawrence delivered the opinion of the
Court :
On the 1st of March, 1860, the appellee Borden, holding a
note given by one "William H. Brand, secured by a mortgage
upon a lot in Chicago, sold the lot under a power in the mort-
gage. The premises were struck off to the appellee Spink,
for the amount due on the mortgage, 83536, and a deed was
made to him on the same day, and recorded March 30th, 1860.
On the 26th of March, 1860, Spink executed to Borden a
mortgage to secure the sum of S3966, due March 1st, 1861,
with ten per cent interest, and on the 30th of December, 1861,
conveyed to him the premises in fee for a consideration ex-
pressed in the deed, of 84000. In 1867, Borden sold the
premises to the appellee Blake, who has erected upon them
very valuable improvements. Prior to the sale in 1860. but
subsequently to the execution of the mortgage to Borden, the
mortgagor, W. H. Brand, had executed another mortgage
CO' ' <~ <—
upon this and other premises to the heirs of W. M. Brand, to
secure certain moneys held by him as their trustee. This is
a bill brought in their name to set a'side the sale to Spink and
subject the property to redemption. The court denied the
relief asked and the complainants appealed.
The sale is attacked on three grounds :
First — For defect in the advertisement.
Second — Because the sale, it is contended, was on credit,
when it was advertised as a cash sale.
Third — Because, it is alleged, the purchase, though in the
name of Spink, was really for the benefit of Borden.
392 Burr et al v. Borden et al. [Sept. T.,
Opinion of the Court.
We will consider these in their order.
The objection taken to the advertisement is, that it was not
sufficiently specific as to the time of the sale. It announced
it to be held on the 1st of March, 1860, between the hours of
nine a. m. and four p. M. This mode of advertising sales has
always been regarded in this State as sufficient if the hours
named belong to the business portion of the day, as they did
in the present instance. Tmistees of Schools v. Snett, 19 111. 157.
Persons who see the advertisement and desire to attend the
sale, can easily ascertain the hour by inquiring of the parties
about to make the sale. If unwilling to wait at the appointed
place, and if deceived by them and prevented from making a
desired bid, the sale might be set aside. To require the ad-
vertisement to name the precise hour would lead to much
practical inconvenience, and often necessitate a postponement
of the sale. It is sometimes very desirable for the interests
of the debtor to delay a sale for two or three hours in order
to await the arrival of persons expected to bid ; or, in conse-
quence of a storm or some other unforeseen emergency. More-
over, if a particular hour were named in all cases, the ques-
tion whether the sale had been held at the hour named would
be a fruitful source of litigation. The mode adopted in this
case has been so generally in use^as the most convenient mode,
and has been so free from any evil consequence, that we are
not inclined to hold an advertisement in this form to be, of
itself, a sufficient reason for setting aside a sale, the hours
named being within the ordinary business hours of the day.
The second objection is, that the sale, though advertised as '
a cash sale, was really upon credit. This objection proceeds
upon the theory that Spink was a bona fide purchaser, which,
however, is denied in the third objection. The only testimony
upon this point is that of Borden and Spink. They both deny
that there was any agreement previous to the sale that Spink
should have credit on his bid. What extension ot payment
Borden chose subsequently to give him, is of course immate-
rial. It seems they were on intimate terms and cousins by
1871.] Burr et al v. Borden et al. 393
Opinion of the Court.
marriage. Spink attended the sale at the suggestion of Bor-
den. The latter, when he offered the property at the sale,
stated he would not start it at less than the amount of the
mortgage. Spink bid that amount, and as there were no other
bidders it was struck off to him. We infer, from all the
evidence, that Borden had previously suggested to Spink that
the purchase would be a good investment at the amount due
on the mortgage. It is quite probable Spink expected to
make some such arrangement as actually was made in case he
should be the purchaser, but there is nothing whatever in the
evidence to show Borden had promised it except the mere
fact that the arrangement was made. Spink was assistant
cashier of the Marine Bank, and Borden swears he then
thought his credit good. He might well have thought Spink
could borrow the money at the bank, as Spink swears he could
have done, though he also swears he does not think he was
really solvent at that time, having speculated heavily in real
estate. "We do not consider the statement of both the wit-
nesses, denying any arrangement for credit previous to the
sale, so improbable, when compared with the other facts, as to
justify us in pronouncing it untrue merely because credit
was, in fact, given.
But even if there had been an understanding between them
previous to the sale, that, as to the amount going to Borden,
Spink, in case he should purchase, might consider it a loan at
ten per cent, we say now, as we said in Waterman v. Spauldlng,
51 111. 430, that we are not prepared to hold such an arrange-
ment would have, of itself, vitiated the sale. Of course, Bor-
den could not have given ^credit for more than the amount
due him, for that would have transgressed his power. It is
not pretended he did so. The charge is, that he had previ-
ously promised Spink he might have time on his bid at ten
per cent interest,, or that he would consider the bid a loan of
money so far as concerned the amount due Borden. AYe are
altogether unable to see how this injured the mortgagor, even
if it occurred. It was, on the contrary, for his benefit. It
394 Burr et al. v. Borden et al. [Sept. T.,
Opinion of the Court.
stimulated a bidder to offer more than he would otherwise do.
Borden was sacrificing, not the rights of the mortgagor, but
his own, for the sake of procuring a better bid for the prop-
erty. The mortgagee, so long as he acts in perfect good faith,
should be permitted to do this as the only means of prevent-
ing a great sacrifice of the interests of the mortgagor.
The case of Longwith v. Butler, 3 Gilm. 42, is cited by ap-
pellants' counsel upon this point, but there is but the faintest
resemblance between this case and that. In that, there was a
corrupt combination between certain persons, to which the
mortgagees were privy, to prevent competition at the sale and
buy the lands at much below their value. To effect this, they
bribed other persons, intending to bid, not to do so. The
larger portion of the money was going to the Bank of Illinois,
and could be paid in the greatly depreciated paper of the bank.
The conspirators not only bribed certain persons, but they told
another who intended to bid that his bid would have to be
paid down, and in good money, and thus dissuaded him from
bidding. They then bought the property at their own price,
and to a large extent on credit. The court speak of this as
holding out false colors, and under the circumstances of that
case, as furnishing, of itself, a ground of relief, as it no doubt
did, because, in connection with the other evidence, it showed
a corrupt and fraudulent combination to sacrifice the rights
of the mortgagor.
In the case before us, it is a very striking fact that the land
brought within about ten per cent of its full value, and doubt-
less all that could be got at a forced sale, and undoubtedly
more than it would have brought but for the effort made by
Borden to procure a purchaser. It was sold at a time when,
according to the evidence, property was at its lowest ebb, af-
ter the inflation of 1857. While an arrangement of the kind
we are now considering might be so connected with other cir-
cumstances as to be a badge of fraud in the case before us, if
it was ever made at all, it could only have been to induce
Spink to bid the full amount of the mortgage, for less than
1871.] Burr et al. v. Borden et al. 395
Opinion of the Court.
which Borden refused to start the sale, and which was sub-
stantially the value of the land. Certainly, in this case, the
mortgagor could not complain.
The final objection is, that Spink really bought the property
for Borden and not for himself. On this point it is only
necessary to say that both Borden and Spink, who are called
bv complainants to prove the truth of this allegation, emphat-
ically deny it. The only evidence upon which we are asked
to presume against their testimony is, that about a year and
nine months after the sale Spink conveyed the fee to Borden.
In the meantime, Spink had been drawing the rents of the
property. We can not say the inference from this conveyance
is so strong as to overturn this positive testimony.
Counsel for appellants repeatedly cite, and with the empha-
sis of italics, the language of the court in Lonyicith v. Butler,
supra, that sales under a power in a mortgage will be set
aside on "the slightest proof of fraud or unfair conduct." We
are of opinion the rule would have been more accurately laid
down by the court if it had said "upon proof of the slightest
fraud or unfair conduct." Powers of this sort are regarded
with such jealousy by the courts, that sales under them, if
attacked in due season, and before the claims of third persons
have intervened, will be set aside if not conducted with com-
plete fairness. But in a case of this kind, as well as in any
other, a court must fairly weigh the evidence, and can not set
aside a sale merely upon slight proof of unfairness if met by
preponderating evidence on the other side. To say that a
court will make a decree divesting a legal title upon the slight-
est proof that may be offered to impeach it, would be inaccu-
rate in any case, and we presume the court in the case cited
had in mind rather the degree of the fraud than the degree of
the proof.
In conclusion, we will remark that all cases of this charac-
ter, where the sale is attacked not as simply void for non-
compliance with the power, but as voidable on equitable con-
siderations having reference to the unfair mode in which the
396 Burr et al. v. Borden et at [Sept, T.,
Opinion of the Court.
power has been executed, the decision must turn upon a com-
parison of the equities. In that view, the present case is clear.
The land, as already remarked, was sold in 1860 for substan-
tially its full value. In 1867, the property having, in the
meantime, risen almost five-fold in value, was sold to Blake
for SI 9,000, and he has erected upon it a very costly building,
so that it is now worth very much more than even that sum.
It is the title of this innocent purchaser, one of a class always
favored in courts of equity, that these complainants seek to
divest. Not until eight years after the sale do they file their
bill. They acquiesced in the sale until the property had
vastly increased in value, had been sold to an innocent pur-
chaser, and great additional value been given to it by his im-
provements. Even if the rights of an innocent purchaser
have not intervened, courts are reluctant to annul sales in
which parties have acquiesced for years, where there has been
no actual wrong or intentional fraud. This principle should
be especially regarded in this State where the values of real
estate have so rapidly changed, and persons are under strong
temptation to search for defects in sales made years ago in
payment of debts, and with which the debtors, at the time,
were perfectly content. We cast no reflections upon this case.
The claim here set up is not a speculative purchase. But our
experience in this court has clearly shown us that, in order to
prevent a great mass of vexatious litigation, singularly desti-
tute of merit, because generally instituted by persons who have
bought for a trifle some dormant and forgotten claim, the
doctrine of acquiescence should receive a favorable considera-
tion.
In the case before us, whatever doubts the evidence tends
to raise must be resolved against the complainants, when we
consider the position of Blake as an innocent purchaser on the
one hand, and the long acquiescence on the other, of all ])ar-
ties affected by the sale sought to be set aside.
Decree affirmed.
1871.] Town of Geneva v. Cole. 397
Syllabus. Opinion of the Court.
The Town of Geneva
Merkitt T. Cole.
lection of taxes is not necessarily exclusive, but a liability for taxes can be
enforced by action of debt.
2. Municipal corporation — questioning its corporate existence. In an
action of debt brought by an incorporated town against a resident thereof
to recover of the latter an amount of tax assessed against hirn on his prop-
erty situate in the town, it was held, that the legal existence of the corpor-
ation could not be tested in such action.
Whit of Error to the Circuit Court of Kane county; the
Hon. Silvanus Wilcox, Judge, presiding.
Mr. Charles D. F. Smith, for the plaintiff in error.
Messrs. Mayborne & Brown, for the defendant in error.
Mr. Justice Breese delivered the opinion of the Court:
This was an action of debt originally commenced before a
justice of the peace of Kane county, by the town of Geneva,
against Merritt T. Cole, to recover an amount of tax assessed
against the defendant on his real and personal property in that
town.
The defense was, that neither the property nor the person
of the defendant was of that town — it was not his domicil,
nor was it the situs of his property.
It appears the board of trustees of the town of Geneva was
organized under their charter May 13, 1867, and held their
first meeting in that month, of which plaintiff in error was a
member, and in that year superintended, by authority of the
board, the construction of a culvert on section 10, south and
west of his residence. It was on his motion before the board
that a committee of two was appointed to draft a contract for
398 Town of Geneva v. Cole. [Sept. T.,
Opinion of the Court.
building the culvert, of which plaintiff in error was one.
During all this year his property was assessed and taxes levied
and collected on all his property, and also for 1868. Taxes
have uniformly been collected from owners residing on sec-
tion ten.
It also appears that, when the taxes in question were de-
manded of him by the collector, he promised to pay them be-
fore the expiration of the warrant. When called upon for his
assessment by the town assessor, he said he had just made it
to the township assessor, and wished the town assessors would
take it from that.
It appears the original plat of the town of Geneva was on
section 3, which section 10 adjoins on the south. The property
of defendant assessed and taxed is all on the north half of sec-
tion 10. The railroad is a little south of the north line of this
section, and the residence of plaintiff in error south of the
railroad.
By the charter of 25th February, 1867, the boundaries of
the town were as follows: All of section 3, the north half of
section 10, northwest quarter of section 11, and the west half
of section 2.
The claim of plaintiff in error, that the situs of his prop-
erty being on the north half of section 10, and not in the cor-
porate limits of the town, seems unfounded. It is not shown
on what part of the north half of section 10 he resides, but
enough is shown to establish the fact that it is somewhere on
the north half. His property has always been assessed as be-
ing within the limits of the corporation, and he himself has
acted as an officer of the corporation.
Another point made is, that an action of debt will not lie
for taxes. This question is settled by Dunlap v. Gallatin County,
15 111. 7, and Ryan v. Gallatin County, 14 ibid. 78, where it
was held that the remedy by distress for the collection of
taxes is not necessarily exclusive — a liability for taxes can be
enforced by action of debt.
1871.] Stevens et al. v. Hay, Adm'e. 399
Syllabus.
As the bill of exceptions does not purport to contain all the
evidence, we can not decide any other questions made by ap-
pellant. The legal existence of the corporation can not be
tested in this action.
The judgment must be affirmed.
Judgment affirmed.
John Stevens et al.
v.
Dawson Hay, Adm'r.
1. Witness — competency under the statute. Where a man and his wife
executed a mortgage on real estate to secure a note, and the mortgagee as-
signed the note and mortgage, and the assignee died, and his administrator
filed a bill to foreclose the mortgage, the mortgagors were not competent
■witnesses to prove a defense, as they were not embraced in the statute ren-
dering parties competent witnesses.
2. Mortgage — assignment. A mortgage executed by parties living in
this State, to be used in the State of Ohio, to indemnify any person who
might become bail for a person in that State, which is assigned to such bail,
is valid, and may be enforced to the extent of loss by the bail on the re-
cognizance.
3. Where a person became such bail on the assurance that the note and
mortgage were assigned to him as an indemnity, and after his death these
instruments properly assigned to him are found amongst the papers of the
attorney who procured him to become bail, and who had also died, the pre-
sumption is, that the assignment Was properly made.
4 Bail— liability of. Where a recognizance has been forfeited in the
State of Ohio, and suit brought on the recognizance, resulting in a
judgment in favor of the bail, and, on appeal, the judgment is reversed
and the cause remanded, and the bail then compromises with the State, and
pays a part of the amount of the recognizance in discharge of the forfeit-
ure: Held, that the liability of the bail was thus fixed, and when he made
the payment he might then look to his principal, or to the note and mort-
gage that had been assigned to him, for indemnity, and might enforce the
400 Stevens et al. v. Hay, Adm'e. [Sept. T.,
Opinion of the Court.
mortgage to the extent that he had paid on the forfeited recognizance aud
necessary expenses, if that did not exceed the amount of the mortgage
note.
5. Recognizance— -forfeiture. Where the principal fails to appear ac-
cording to the condition of his recognizance, and a forfeiture is taken, the
liability of the bail is fixed, and he can only show that there was no power
to take the recognizance, that it is invalid, or that he has in some mode
been discharged, to escape liability.
Appeal from the Circuit Court of LaSalle county ; the Hon.
Edwin S. Leland, Judge, presiding.
Mr. B. C. Cook, for the appellants.
Mr. Frank J. Crawford, for the appellee.
Mr. Justice Walker delivered the opinion of the Court :
It appears that one Charles Hay, a brother of Mrs. Ste-
phens, had been indicted in the common pleas court of Wayne
county, in Ohio, for nine several forgeries, under which he
was then imprisoned in the Wooster jail ; and appellants, for
the purpose of indemnifying any person who should become
his bail, executed the note and mortgage upon which this suit
is brought. Levi Cox being the attorney for accused, these
instruments were made payable to him. The bail was fixed
by the court at §500, in each of the nine cases.
Charles Hay, an uncle of accused, on the 13th of Novem-
ber, 1860, became his bail in all of the cases, and he was re-
leased from imprisonment; and on the next day, in pursuance
to a previous arrangement, the note and mortgage were en-
dorsed by Cox to the bail to indemnify him against any loss
he might incur by entering into the several recognizances. On
the 26th of the same month, the accused failing to appear, the
recognizances were forfeited in the court of common pleas.
In the year 1865, suits were brought by the State of Ohio,
in the same court, on the recognizances, when the bail inter-
posed a defense that the probate court had no authority in law
to recognize persons indicted for crime, and the accused had
1871.] Stevens et al v. Hay, Adm'r. 401
Opinion of the Court.
not been lawfully imprisoned, upon which there was an issue,
which, on a trial; was found against the State; but, on appeal,
the judgment was reversed and the cause remanded.
Charles Hay, the bail, then petitioned one of the supreme
judges for leave to file a petition in error in the Supreme
Court, which was refused. To save further expense, Hay,
the bail, settled with the attorneys for the State, and paid, in
satisfaction of his liability on all of the recognizances, the sum
of §2750 and costs.
Charles Hay, the uncle, in this litigation, incurred, as it is
alleged, expenses for attorneys' fees, $500. He subsequently
died, and, on the 15th day. of October, 1867, appellee was ap-
pointed administrator of his estate, and to have refunded the
money thus paid on the judgment on the recognizance, and
attorneys7 fees, appellee filed this bill to foreclose the mort-
gage.
Appellants set up, in their answer, that the note and mort-
gage were executed and sent to Cox, that he might procure a
loan of $2500 from Charles Hay, deceased, but that the money
was never obtained, and that the consideration had failed.
Appellant Milton Stevens claims the mortgaged premises by
a deed of conveyance from the other appellants, and filed a
cross bill to have his rights established, the answer to which
denies that the conveyance was bona fide, and alleges that it
was subsequent in time to the mortgage, and must be held sub-
ject to its provisions.
On the trial below, Stevens and wife testified to the version
they gave of the matter, in tfteir answer: that the note and
mortgage were executed to procure a loan of money. Their
evidence was not admissible, under our statute, as the assignee
was dead, and the proceedings were instituted by his adminis-
trator. They do not come within any exception of the statute.
The record shows they testified in their own behalf, as well as
for their co-defendant, against the objection of appellee's coun-
el ; and being incompetent, their testimony should not have
been received. If it were excluded, the evidence would be
26— 61st III.
402 Stevens et al v. Hay, Adm'r. [Sept. T.,
Opinion of the Court.
overwhelming that the note and mortgage were executed to
enable Cox to obtain bail for the accused by transferring it as
an indemnity to whoever might become bail. But if it were
considered in the case, then the evidence strongly preponder-
ates in favor of the fact that the instruments were executed
for that purpose, and not to procure a loan of money. To this,
Harris, the justice of the peace who prepared the papers and
took the acknowledgment, and Delia Sloan, then the wife of
accused, and who had come to this State for the express pur-
pose of procuring the instruments, that, with them, her husband
might be enabled to procure bail, both clearly and unequivo-
cally swear. They were both present, and heard and knew
what was said and done when the instruments were executed,'
and Mrs. Sloan was entrusted with them to be delivered to
Cox, in Ohio, for the purpose. They are both disinterested
and free from all interest, and had an equal opportunity to
know all the facts, and their evidence is entitled to more weight
than appellants', even if theirs was admissible.
Again, John Stevens stated to Flattery, in a conversation
with him, when he desired the latter to surrender the note and
mortgage, that the recognizances, on which the assignee was
bail, were void and could not be collected. He placed the de-
mand alone on that ground. He also admitted to Jeffries that
they were given to indemnify any one who might become bail.
And to Welker he claimed that, if the note and mortgage were
given for indemnity, Charles Hay was not liable on the recog-
nizances, and they should be given up to him.
With such an array of evidence in the record, we can have
no doubt that the note and mortgage were executed to be used
by Cox in procuring bail precisely as he did, and that he thus
was constituted and became a trustee for the purpose, and that,
having procured Charles Hay to become bail, if it was induced
by the assignment of the note and mortgage, he acted within
the scope of his powers as such trustee, and the bail became
fully invested with the right to insist upon indemnity from the
1871.] Stevens et al. v. Hay, Adm'r. 403
Opinion of the Court.
mortgaged premises to the extent of the note and mortgage,
if he had been compelled to pay that sum on the recognizances.
But it is urged that there is no evidence that the note and
mortgage ever in fact were assigned or passed to Charles Hay,
the bail. Cox is dead, and we have to look to other evidence
for proof of the fact.
Welker swears that Cox informed him that he had assigned
the note and mortgage to Hay. It appears Cox was his attor-
ney, and the papers were found in a desk of his after his
death, indorsed as they now are; and Mrs. Sloan swTears that
Charles Hay. at the solicitation of Cox and herself, became
bail under the agreement that the note and mortgage were to
be assigned to him as indemnity. This proof is sufficient to
establish the fact, and his statements to Jeifries and Welker
show that John Stevens recognized Charles Hay as the assignee
of these instruments.
We regard the evidence as abundant to show that he was
the assignee, and, as such, had the right, which has vested in
his representative, to enforce the mortgage to indemnify him
for moneys paid by him on the forfeiture of the recognizances.
It is urged that appellee failed, by the evidence, to prove
that his intestate was liable to pay the money to the State in
discharge of the several recognizances, and hence appellants
can not be charged with the amount.
The evidence shows that the recognizances were forfeited,
and if so, that created a prima facie liability for their payment.
A judgment was subsequently rendered in favor of the re-
cognizor in a suit brought ii/the common pleas court, but, on
error to the district court, the judgment was reversed and the
cause remanded. This left the judgment of forfeiture in full
force and effect, and a judgment of the district court in like
force, holding that the recognizances were legally entered into
before the probate judge. The defense interposed was held
insufficient. This, then, was prima facie such a liability as
required the recognizors to pay the forfeiture.
404 . Stevens et al. v. Hay, Adm'k. [Sept. T.,
Opinion of the Court.
Having shown a prima facie liability on behalf of decedent,
it then devolved upon appellants to overcome that presump-
tion by showing that some defense existed that would have de-
feated a recovery by the State in the suit then pending.
Appellants have not even suggested, much less proved, any
defense that could have been successfully interposed.
On rendering the judgments of forfeiture, the liability of
bail was fixed, unless some release, discharge or want of orig-
inal liability on the recognizances could be shown on scire fa-
cias, or in a suit on the record, and none has been suggested
to have existed. His liability being fixed, he was not required
to incur further expense by litigation. If he paid without
being in fact liable, although the record showed he was, ap-
pellants could have shown it and escaped all responsibility;
but no proof was introduced to show that the principal had
paid the judgment of forfeiture, or that the recognizances
were otherwise discharged before appellee's decedent compro-
mised and paid them. But the proof shows that the principal
was insolvent.
It is objected that the common pleas court had power to re-
mit a portion of the forfeitures, and that Charles Hay should
have made application for that purpose.
The prosecuting attorney swears that he was induced to
make the deduction he did on the compromise, as he feared
the court would make such a deduction if asked by Hay.
We are aware of no common law rule that vests a court
with such a power. But the 4th Geo. 3, Ch. 10, provides that,
after the recognizance has been forfeited, and estreated into
the exchequer, the Barons may discharge any person, on peti-
tion, whom they think entitled to favor. 1 Chit. Crim. Law,
92. But whether the State of Ohio has adopted that or any
similar act, does not appear, and in the absence of proof, we
can not presume it has.
Xor does the evidence show that Charles Hay was induced
to become bail on any promise that his son would indemnify
him for so doing. It does, however, appear that his son loaned
1871.] Lawson et al. tv. Kolbenson et al. 405
Syllabus.
him some money .with which to pay the judgments of forfeit-
ure; but that fact can in nowise affect the liability of appel-
lants to refund to the estate of Charles Hay the money he
paid to become discharged. Nor is it a defense that Stevens
was not notified of the suit on the recognizances. Failing to
give such notice, appellee was bound to prove a liability on the
part of his intestate to pay the money before he could recover.
This he did when he proved the forfeiture.
Chitty, in his treatise on criminal law, vol. 1, p. 106, says,
the same consequences flow from a want of a strict compliance
witli the terms of a recognizance to appear to answer a crimi-
nal charge, that attach to a forfeiture to prosecute, or as a wit-
ness. And at page 92, he says that, by the non-appearance of
the prosecutor or witness under recognizance, it is broken, for-
feited and absolute; and being estreated, the party becomes
an absolute debtor to the crown for the penalty named in the
recognizance. When, therefore, the judgment of forfeiture
was shown, a prima facie liability was established, which not
only authorized the bail to pay the amount, but prima facie
rendered Stevens liable to refund the money to him, and that
liability not having been disproved, the court below did not
err in rendering the decree, and it is affirmed.
Decree affirmed.
Iver Lawson et al. as Trustees of the Norwegian
Evangelical Lutheran Church of Chicago
v.
Torjus Kolbenson et al.
1. Parties in equity — suit for church property. Where the minority
of a church organ izatiou seek to arrest a contemplated or correct an ac-
complished perversion of the trust under which the church property is
406 Lawsox et al. v. Kolbexson et al. [Sept. T.,
Syllabus.
held, the bill should be filed by the persons composing the minority iu
their individual names; or, if the parties be numerous and all stand in the
same situation, having a common right or intererst, then two or three, or
more, may sue in their own names for the benefit of all.
2. Same — church as party. But when the acts of the trustees, confirmed
by a majority of the church, constitute the alleged perversion, then, inas-
much as such trustees and majority of the church represent the corpora-
tion, their acts must be regarded as the acts of the corporation, and the
corporation is a necessaiy party, for it would not be bound unless made a
party in its corporate character. Hence, if not complainant, it must be
made defendant.
3. Certainty — \ow far requisite. It is absolutely necessary that such
a convenient degree of certainty should be adopted in the structure of bills
in equity as will serve to give the defendant full information of the case
which he is called upon to answer. The character in which the com-
plainants sue is an essential element of the case, and they will not be al-
lowed to so describe their character as to induce the defendant to suppose
that they sue in autre droit, and then upon the hearing insist that they
have sued as well in their own individual rights.
4. Suit in autre droit — words describing. Where the complainants,
after setting out their individual names, state the character in which they
sue, thus : "as trustees of the Norwegian Evangelical Lutheran Church of
Chicago, in their own right and in behalf of the persons hereinafter men-
tioned, whom, as trustees, they represent," they describe the character in
which they sue in the proper language to express that they sue in autre
droit. It is as trustees, etc., and this is an express limitation to the charac-
ter thus indicated.
5. Individual rights — how sued for. In this case, the words "in their
own right" injected into the description of their character, are not equiva-
lent to the words "in their own individual rights,''' but when considered
witli reference to the context, must be taken to mean in their own right
as such trustees.
6. If these complainants had sued as individuals, basing their right up-
on membership in the church, or upon that of mere cestuis que trust, and
for the benefit of all other members standing in common interest, they
would have presented an entirely different case requiring a different line
of defense, and it seems that the entire litigation might then have been
disposed of upon a plea setting up their previous expulsion from the
church by the ecclesiastical tribunal of the church.
7. Quo warranto — when necessary. Where the defendants have been
de facto elected to a corporate office, have accepted and acted in the same,
the validity of their election can only be tried by a proceeding or infor-
mation in the nature of a quo warranto. Nor can the title to an office, in
1871.] Lawson et al v. Kolbenson et al. 407
Syllabus.
such a case, be decided in a collateral suit ; it must be by a direct proceed-
ing.
8. Same — against church trustee. It is the settled law of this country
that an information in the nature of a quo warranto will lie against one
who intrudes himself into the office of trustee of a church corporation.
9. Trust property — perversion of trust. Where a deed is to certain
persons as trustees of a church by the then name of the Scandinavian
Evangelical Lutheran Church of Chicago, and the trust was expressed
thus : "For the erection of a house for public religious worship and none
other, without the consent of the parties of the first part," it shows that
the intention of the parties is, that the premises are to be held in trust for
the erection and use of a house for public religious worship, under the min-
istrations of an Evangelical Lutheran Church, as its essential doctrines and
tenets are then promulgated and known, and so long as this is done courts
of equity do not interfere on account of inaccuracies of expression or inap-
propriate figures of speech, nor for departures from mathematical exact-
ness in the language employed in inculcating the tenets of the donors.
There must be a real, substantial departure from the purposes of the trust,
such an one as amounts to a perversion of it, to authorize the exercise of
equitable jurisdiction in granting relief.
10. Church independence — effect of. Where a church has a com-
plete legal existence, self-governing in character, before it unites with any
synod, and might continue on as it began without being connected with
any, and while thus independent acquires a conveyance of lands, and af-
terwards, by a majority vote of the church, connects and disconnects it-
self with several synods successively, always maintaining and observing
the doctrines, tenets and symbols of the original church, and there is a
clear preponderance of testimony that, under the laws, usages and cus-
toms of that church, it is competent for a majority of the members to sever
the connection with the synod at any time, such a majority loses none of
its rights in the property of the church by so doing.
11. Same — pastor under sentence. Where the synod of A, to which
such a church then belonged, met on the 20th of March and entered on
the trial of certain charges against its pastor, and after a session of three
days adjourned to the 24th of April without concluding the trial, and on
the 18th of April such church, b}^ vote of a majority of its members, duly
withdrew from all connection with the synod of A, and afterwards said
synod, meeting on the 24th of April, continued the trial, concluding on
the 27th, with a sentence that said pastor be excluded from that S}-nod and
from the ministry in the churches belonging to it, such a sentence does
not affect tli is church which did not belong to it.
Writ of Error to the Superior Court of Chicago ; the
Hon. John A. Jameson, Judge, presiding.
408 Lawson et al. v. Kolbenson et al. [Sept. T.,
Opinion of the Court.
Messrs. Hued, Booth & Keeamee, and Mr. C. Beckwith,
for the plaintiffs in error.
Messrs. Millee, VanArman & Lewis, for the defendants
in error.
Mr. Justice McAllistee delivered the opinion of the
Court :
This is a bill in chancery for the equitable adjustment of
the temporalities of a religious society. It was exhibited by
plaintiffs in error, "as trustees of the Norwegian Evangelical
Lutheran Church, of Chicago, in their own right and in be-
half of the persons hereinafter mentioned, whom, as trustees,
they represent/7 against ten individuals by name, nine of
whom are described as trustees of the same society, and one as
the acting pastor thereof. The bill as originally filed, and as
amended, goes upon the theory that a majority of the society
have seceded from the church as originally established by
wrongfully withdrawing from the synod and its government
to which the church was subject, and have united with and
under another synod and church government of different ten-
ets and doctrines; that, although the nine defendants above
mentioned are the trustees of the majority and have retained
the pastor, also made defendant, and have the possession and
use of the church and its property, yet the secession of the
majority from the first mentioned synod, and their retention
of the defendant Petersen as their pastor, under the circum-1
stances mentioned in the bill, and forming the connection
with the other synod, operated as a perversion of the trust to
which the church property was subject, so that equity should
intervene for the protection of the minority by declaring that
the majority have, by so acting, forfeited all of their rights
in and to such property. The prayer of the bill is, that the
complainants may be decreed to be the lawful trustees of the
church and entitled to the control and possession of the church
property for the use of such members as had not so seceded ;
1871.] Lawson et al. v. Kolbenson et ah 409
Opinion of the Court.
that the trustees of the majority be enjoined from pretending
they are trustees, or from exercising any control over said
property, and be decreed to deliver over the keys of the
church, record books, etc., to complainants, and from interfer-
ing with the latter and those they represent in the use of the
church property, or in administering the government of the
society, and for general relief. Issues were formed by ans-
wers and replications, the cause was heard upon pleadings,
exhibits and proofs, a decree of dismissal of the bill rendered,
and the case is brought to this court by writ of error.
The record is exceedingly voluminous, but we will endeavor
to compress the material facts into as small a compass as pos-
sible.
It appears that, about the 14th of February, 1848, said
church was incorporated under the general statute of this
State by the name of the "Trustees of the Scandinavian Evan-
gelical Lutheran Church of Chicago." Afterwards, and about
the first of June of that year, it united with a synod called the
Frankean Evangelical Lutheran Synod of New York. On the
18th of September, 1851, it voluntarily withdrew from the
Frankean Synod and united with other churches in forming
the Synod of Northern Illinois. On the 1st of October, 1851,
a deed was executed by Hosea Webster and wife of lots 24,
25 and 26, in block 13, Butler, Wright & Webster's addition to
Chicago. The grantees in this deed are eight persons. The
conveyance describes them as trustees of the Scandinavian
Evangelical Lutheran Church of the city of Chicago, and
runs to them and to their successors in the same office as trus-
tees. The purpose of the conveyance, as declared by the deed,
is "for the erection of a house for public religious worship,
and none other, without the consent of the parties of the first
part." The consideration expressed in the deed was $650, so
that the lands were not a donation from Webster, but Mere
purchased by the donations or contributions of members of
that and other societies, and in the same manner money was
410 Lawson et al. v. Kolbenson et al. [Sept. TJ
Opinion of the Court.
raised with which to erect the house for public religious wor-
ship upon the premises. The house was erected during the
years 1854-5 and 6. On the 13th of April, 1857, the society
adopted a constitution recommended by a conference of Scan-
dinavian ministers belonging to the Synod of Northern Illi-
nois. At that time the name of the society was changed to
that of ''The Norwegian Evangelical Lutheran Church of Chi-
cago." This conference appears to have been an unofficial
body, though its members belonged to the Synod of Northern
Illinois. On the 23d of April, 1860, at a similar conference;
a resolution was passed by the ministers composing it, that
their churches should withdraw from that synod. On the 8th
of May, 1860, the church in question was called upon to act
on that resolution, and it was adopted. The resolution was as
follows : "Resolved, That we, the Norwegian Lutheran
Church of Chicago, which, until this time, has been con-
nected with the Evangelical Lutheran Synod 6f Northern Illi-
nois, hereby peaceably withdraw from the churchly connec-
tion with the said synod, and that the officers of the confer-
ence reverently communicate to the president of the said synod
the information regarding this our withdrawal."
After having thus withdrawn from two synods, this church
afterwards, and on the 5th of June, 1860, became connected
with a new synod called the Scandinavian Evangelical Lu-
theran Augustana Synod. No circumstances are disclosed
showing this connection to be any more indissoluble in its
nature than that with the Synod of Northern Illinois, or even
that with the Frankean Synod of New York.
Soon after the connection was made with the new synod,
and about the 20th of June, 1860, the Rev. Paul Anderson,
who had been hitherto the pastor of this church, resigned his
pastorate. The cause is not disclosed. In the autumn fol-
lowing, the initiative was taken for calling the Rev. C. J. P.
Petersen, one of the defendants in the bill, to the vacant pas-
torate. He then resided in Norway, and came. On the loth
of April, 1861, he was formally installed as pastor, and on the
1871.] Lawson et al. v. Kolbenson et al. 411
Opinion of the Court.
5th of June thereafter he was admitted into the Augustana
Synod to which his church then belonged.
The record discloses no want of harmony between him and
his people until about the month of June, 1865, when a diffi-
culty arose, which, however, is not traceable to differences in
matters of doctrine and conscience so much as to what may
justly be termed the ordinary perverse spirit of unregenerate
human nature. It appears that the Rev. Paul Anderson, who
had formerly been the pastor of the church, but whose rela-
tion's as such had ceased before the Rev. Petersen's installation,
had seen fit to occasionally officiate in the performance of the
baptismal and other services within the pale of this church ;
so that, as the church records show, on the 5th of June, 1865,
a church council composed of the deacons and trustees of the
church proposed to the church a resolution of censure upon
Rev. Paul Anderson for attempting to exercise pastoral func-
tions within the church, baptizing, etc., and affirming that the
church would not silently endure its repetition. At a meet-
ing of the congregation or church, held on the 17th of the
same month, this resolution was adopted, and which was sub-
stantially re-adopted September 20th, 1865.
In December of the same year, arose another cause of diffi-
culty of a similar character. Rev. Hvedding had formerly
been an assistant pastor of this church. Certain members,
eleven in number, it appears, had caused a petition to be pre-
sented to the church council, praying that Rev. Hvedding be
allowed to administer the communion service to such mem-
bers of the church as desired to receive it from him. Upon
acting on the petition in the council, several members of that
body voted against it. But four deacons, viz. : Lohne, Borke,
Kelson and Anderson, voted for it. During all these events
Petersen was the regular pastor of the church and in the per-
formance of the duties of his office. Such acts of intrusion
and of mischievous tendency were followed by their natural
results : dissensions, and calling up the powers of discipline,
and this followed by plots and counterplots. Accordingly the
412 Lawsox et al. v. Kolbensox et ah [Sept. T.,
Opinion of the Court.
first step was, that, on the 10th of January, 1866, a meeting
of the congregation was held, at which the four deacons above
mentioned were censured and virtually deposed. The grounds
of censure were :
First — That they had refused to discipline one B. Olson, a
church member, who, in violation of the resolutions of June
and September, had caused Mr. Paul Anderson to perform the
baptismal service in his family.
Second — That they had voted to allow the Rev. Hvedding
to perform the communion service in the church at the re-
quest of a few disaffected persons, and had refused to protest
against his doing so.
On the 8th of February, 1866, the four deacons thus cen-
sured preferred charges against the Rev. Mr. Petersen to the
president of the Augustana Synod, and that body was con-
vened for the purpose of considering them. It entered upon
the trial of Petersen upon those charges, on the 20th of March,
1866, at Chicago. After a session of three days, and on the
23d of March, the synod adjourned to the 24th of April. At
the annual meeting of the congregation, held on the 2d dav of
April, 1866, for the election of officers, the following persona
were elected to the offices of deacons and trustees in the place
of Iver Lohne, P. Olson, Borke, R. Rasmusson and O. B.
Jacobs, whose terms had expired, viz: Torjus Kolbenson
and Christian Larsen for three years each, and Hans C. An-
derson and O. Jacobs for two years each. At a meeting of the
church council on the 9th of April, 18Q6, Jens Anderson and
Jens Xelson were, for unchristian conduct, and particularly
for having preferred charges against their pastor before the
synod without first having made them to the church council
as required by article 3 section 4 of the church constitution,
suspended from church membership; and at a meeting of the
church council held on the 16th of the same month, Iver
Lohne and Peter Borke were, for a similar cause, suspended
from membership with the church.
1871.] Lawson et al v. Eolbenson et al. 413
Opinion of the Court.
But on the Gth of April, 1866, fifty of the voting members
of the church made a written request upon their pastor, Rev.
Mr. Petersen, to call a meeting of the congregation on the
18th of that month to consider the question of the withdrawal
of the church from the Augustana Synod, and notice of the
meeting was accordingly given from the pulpit on the 8th and
15th of April. At this meeting, by a vote of 145 to 99, the
church formally withdrew from the synod by passing the fol-
lowing resolution:
"Whereas, This church was organized and adopted its
constitution several years before the existence of the August-
ana Synod, and has, at different times, transferred its relations
from one synod to another ; and, whereas, it has become ap-
parent that there is a want of sympathy and harmony between
the majority of this church and the Augustana Synod ; and,
whereas, the Augustana Synod has pursued a course in the
treatment of our pastor, the Rev. C. J. P. Petersen, which we
deem inconsistent with the constitution of this church, as well
as at variance with the dictates of christian charity; therefore,
"Resolved, That we hereby withdraw from all connection
with the Augustana Synod, with the purpose of remaining a
true Lutheran Church, and of connecting ourselves, when con-
venient, with a true Lutheran Synod/
On the 24th of April, after the adoption of the above reso-
lution, the Augustana Synod convened and proceeded with the
trial of the Rev. Mr. Petersen, concluding, on the 27th of the
same month, with a sentence that he be excluded from that
synod and from the ministry in the churches belonging to it.
The synod then appointed two persons, viz: the Rev. Mr.
Hattlestadt and the Rev. Mr. Hasselquist, to offer to, and to
perform the duties of pastor for said church. But the church
denying the right of the synod to impose a pastor upon it,
refused to admit the appointees, or either of them ; and after
the sentence was rendered, but on the same day, the deacons
414 Lawsox et al. v. Kolbexsox el al. [Sept. Tl
Opinion of the Court.
of the church convened and resolved, in substance, that inas-
much as the church had previously withdrawn from the svnod,
its prohibition of the Rev. Mr. Petersen officiating as pastor
of any church belonging to that synod had no effect as to that
church, and, protesting that they had no confidence in the fair-
ness of the synod or the justice of its sentence, resolved that
they would request their pastor to continue as such; but, in-
asmuch as such a sentence had been pronounced against him,
they would have the whole matter reviewed by another synod.
Consequently, at a council meeting held on the 3d of May,
1866, and at a congregational meeting held on the 5th of
July, same year, it was resolved by the church to apply for
admission as a church into the "Norwegian Evangelical
Lutheran Synod in America," at which time the Rev. Mr.
Petersen, the pastor, also applied for admission to the same
svnod. Suffice it to say that, pursuant to the application, the
charges against Mr. Petersen, made in the Augustana Synod,
and the status of the church, were fully investigated in and by
the Norwegian Synod. He was exonerated from the charges,
and himself and church duly admitted into the latter synod,
in which, so far as the record shows, they have ever since re-
mained. The church has continued Mr. Petersen as pastor,
and its organization by the proper elections of trustees and
deacons, who went into and retained possession of such offices.
"While the majority that adhered to Rev. Mr. Petersen con-
tinued the organization and to worship in the same church
after the withdrawal from the Augustana Synod, the minority,
consisting of the plaintiffs in error and their adherents, aban-
doned the church and all further connection with its worship.
The church constitution contains the provision, "that if, after
admonition, any members of the church shall wilfully absent
themselves from public worship for three months, their names
shall be stricken out and they shall lose all their right in the
real and personal property of the congregation."
Plaintiffs in error and their adherents absented themselves
and were duly admonished. Refusing to resume their duties
1871.] Lawson et al. v. Kolbenson et al. 415
Opinion of the Court.
and continuing to absent themselves from public worship for
more than three months, their case was brought before the
regularly constituted tribunal of the church, whose decision
was, that their names, for the cause aforesaid, should be
stricken out and they be excluded from membership of the
church. Afterwards, and on the 22d day of April, these ex-
communicated persons, and perhaps others, comprising the
minority, held a meeting under the following notice :
"The First Norwegian Lutheran Congregation in Chicago
hold its annual meeting here, in Pastor Krogness' church
(Trinity church) the second day of Easter, April 22d, at two
o'clock in the afternoon, when deacons, trustees, and secretary
for the congregation will be elected, and also to act upon and
decide in other matters of importance to the congregation.
All voting members of the congregation are earnestly re-
quested to attend the meeting.
Ole J. Hattlestadt,
Officiating Pastor, etc."
Under this call, and the meeting held thereunder, plaintiffs
in error, who had been already excommunicated from the
church in question under the authority of the majority, were
elected trustees, and on the 27th of the same month filed their
certificate in the recorder's office of Cook county, certifying
that, on the 22d day of April, 1867, they were elected trus-
tees of the Norwegian Evangelical Lutheran Church of Chi-
cago. The persons so elected having never been admitted in-
to possession of the office, file this bill.
Question has been made in argument in respect to the char-
acter in which plaintiffs sued — their counsel maintaining on
the one hand that the suit is brought by the persons named
as complainants in their own individual right on behalf of
themselves and others interested, while, on the other hand, the
defendants' counsel insist that the plaintiffs sued m autre droit;
that they exhibit their bill in an assumed corporate capacity
and no other; that, therefore, thev are not entitled to relief in
416 Lawsox et al. v. Kolbexsox et al. [Sept. T.,
Opinion of the Court.
their individual characters. The name by which this relig-
ious society, made a corporation aggregate under the statute,
should sue or be sued, is : The Trustees of the Norwegian
Evangelical Lutheran Church of Chicago. P. S. 1845, pages
120 and 121.
When the minority of an association, like the church in
question, seek to arrest or correct a contemplated or accom-
plished perversion of the trust under which the church prop-
erty is held, the bill should be filed by the persons composing
the minority in their individual names ; or, if the parties be
numerous, and all stand in the same situation, having a com-
mon right or interest, then two or three or more may sue in
their own names for the benefit of all. 1 Dan. Ch. Pr. 29, 30.
When, however, as here, the acts of the trustees, confirmed
by a majority of the churcn, constitute the alleged perversion,
then, inasmuch as such trustees and majority of the church
represent the corporation, their acts must be regarded as the
acts of the corporation itself, wherefore the corporation is a
necessary party, for it would not be bound unless made a
party in its corporate character. If the corporation is not
complainant it should have been made defendant.
In what character did the plaintiffs sue? The rules of
pleading in equity are designed to afford a ready answer to
such a question.
"In its modern structure, " says Story, "a bill is, or may be,
composed of nine parts. The first part is the direction or ad-
dress of the bill to the court from which it seeks relief. The
second part is the introduction which contains the names and
description of the parties exhibiting the bill, etc. In this
part the names of the parties are not only given, but their
places of abode, etc., and the character in whichthey sue, if they
sue in autre droit, and such other description as is necessary
or proper to found the jurisdiction of the court. n Story Eq.
PI. sec. 26.
In the second part of this bill the plaintiffs, after setting
out their individual names, state the character in which they
La- I aL v. KouBXKBom et al. 417
Opinion of the Court
sue, thus: "As trustees of the Norwegian Evangelical Lu-
theran Church of Chicago, in their own right, ami in behalf
of the persons hereinafter mentioned, whom, as trustees, they
represent."
It is a rule that a sole corporation suing for a corporate
right, having two capacities, a natural and a corporate, must
always show in what right he sues. Bac. Abr. Corporation E.
2: Weston v. II :. '2 Mass. 500.
The plaintiffs described the character in which they sued,
in the proper language to express that they sued in autre droit.
It is as trustees, etc. This is an express limitation to the
character thus indicated. Such is the rule at law. Doughs
v. Islam, 8 Term E. 416; Rogers v. Jenkins, 1 Bos. & Pul.
: 1 Chit. PI. 252 ; and substantial reasons are perceived
why it should be the rule in equity. It is absolutely necessary
that such a convenient degree of certainty should be adopted
in the structure of bills in equity as will serve to give the
defendant full information of the east which he is called upon
to answer. The character in which the plaintiff sues is an
essential element of the case, and plaintiffs will not be allowed
to so describe their character as to induce the defendants to
suppose that they sue in autre droit, and then upon the hear-
ing insist that they have sued as well in their own individual
right. The words, '*in their own right/1 injected into the
description of their character, are not equivalent to the words
"in their own individual rights f but, when considered with
reference to the context, must be taken to mean in their own
right as sueh trust
If they had sued as individuals, basing their right upon
membership of the church or upon that of mere cestuis que
■\ and for the benefit of all other members standing in
common interest, they would have presented an entirely dif-
ferent case, requiring a different line of defense. Then, per-
haps, the entire litigation could have been disposed of upon a
plea setting up their previous expulsion from the church by
the ecclesiastical tribunal of the church.
27— 6 1st III.
418 Lawson et al. v. Kolbenson et al. [Sept. T.,
Opinion of the Court.
The entire theory of the case made by the bill as originally
filed, is, that the plaintiffs are the lawful trustees of the cor-
poration because elected by those who adhered to the Augus-
tana Synod, and because the majority who withdrew ceased to
be of the church corporation by reason of their secession. It
is upon the theory that plaintiffs, in their corporate capacity,
were vested with the legal title to the church property; were
lawfully entitled to its control, and to the control of all the
temporalities and spiritualities of the church; that the trus-
tees of the majority, who were in possession and control of the
church and its property, were virtually usurpers. Hence the
court was asked to compel the latter to pass over the key of
the church to plaintiffs, transfer over to them the church prop-
erty, records, etc., and to restrain them from pretending that
they were the trustees of the church.
By the amendments of the bill the plaintiffs did not profess
to change it in respect to the character in which they sued,
but only alleged certain changes of tenets and doctrines on
the part of the majority, specifying what they were, as a fur-
ther ground for the relief asked in the original bill.
It is the settled law of this country that an information in
the nature of a quo warranto will lie against one who intrudes
himself into the office of trustee of a church corporation. Aug.
& Ames on Corp. 9th Ed. 751. The defendants had been de
facto elected to a corporate office, had accepted and acted in
the same. In such case, the validity of their election could
only be tried by a proceeding on information in the nature of
quo warranto. Nor can the title to an office, in such case, be
decided in a collateral suit ; it must be by a direct proceed-
ing. Baker et al. v. Backus, 32 111. 79, and cases cited ; Re-
gina v. Chester ', 34 Eng. L. & Eq. 59 ; Conover v. Devlin, 24
Barb. 587 ; Mayor, etc. of New York v. Conover, 5 Abbott Pr.
Rep. 171 ; North Baptist Church v. Parker, 36 Barb. R. 171.
In this last case it was held that, persons claiming to have
been elected to the office of trustees of a religious corporation,
1871.] Larson et al. v. Kolbenson et al. 419
Opinion of the Court.
the title to the office being disputed, and who have not ob-
tained actual possession of the records and property of the cor-
poration, and whose right to the office has not been deter-
mined by competent authority, have no right to use the name
of the corporation in the suit against the trustees de facto to
recover possession of the property of such corporation; and it
was further held that, in a suit in the name and behalf of the
corporation, the title to the office of trustees of such corpora-
tion can not be put in issue or litigated and determined.
It may be said that this was not a suit on behalf of the cor-
poration, because the alleged trustees were named by their
proper names. This fact does not change the character of the
parties.
When the warden and fellows of Manchester college filed a
bill in equity for titles in their corporate capacity, but in their
proper names, in which a decree was pronounced from which
both the plaintiffs and defendants appealed, and pending the
appeal two of the fellows died, two new fellows were elected
in their place, and an objection was taken on the ground that
the new fellows were not parties, Lord Eldon held that there
was no defect of parties because the parties named had sued in
their corporate capacity, although it would have abated if the
suit had been by them in their individual characters. Black-
burn v. Jepson, 3 Swanst. 138. So here, if some of the plain-
tiffs had died pending the suit, and before decree, the suit
would not have become defective by their death, although it
would have abated if the suit had been by them in their indi-
vidual characters, except sq^far as saved by the 40th section
of the chancery act; (R. S. p. 98;) and in such case, would it
be contended that there was either necessity or propriety in
reviving under the statute in the name of legal representa-
tives? Sec. 1 DaniellCh. Pr. 27.
But, waiving this question and assuming that the plaintiffs
sued in their individual capacity, and we are of the opinion
that they have failed to make out a case for relief.
420 Lawson et al. v. Kolbenson et al. [Sept. T.,
Opinion of the Court.
The deed was to certain persons as trustees of this church
by the then name of the Scandinavian Evangelical Lutheran
Church of Chicago, and the trust was expressed thus : "For
the erection of a house for public religious worship, and none
other, without the consent of the parties of the first part."
The deed, taken altogether, shows that the intention of the
parties was, that the premises were to be held in trust for the
erection and use of a house for public religious worship under
the ministrations of an Evangelical Lutheran Church. The
church Avas organized at the time, and its essential doctrines
and tenets promulgated and known. To those we must look
to ascertain the nature of the trust.
In Happy et al. v. Morton et al. 33 111. 407, Mr. Justice
Beckwith, delivering the opinion of the court, said: "Courts
of equity will exert their powers to prevent a misuse or an
abuse of charitable trusts, and especially trusts of a religious
nature, by trustees or by a majority of a society having posses-
sion of the trust property; but in all cases the trust and the
abuse of it must be clearly established in accordance with the
rules by which courts are governed in administering justice.
* * Courts of equity do not interfere on account of inaccu-
racies of expression or inappropriate figures of speech, nor for
departures from mathematical exactness in the language em-
ployed in inculcating the tenets of the donors. There must
be a real, substantial departure from the purposes of the trust,
such an one as amounts to a perversion of it, to authorize the
exercise of equitable jurisdiction in granting relief."
Tested by tbese rules, we are of the opinion that the plain-
tiff's have failed to make out a case on the ground of departure
from the purposes of the trust.
The church has ever been, since its withdrawal from the
Augustana Synod, as really and substantially an Evangelical
Lutheran Church as it was at the time of the conveyance of
the property to it.
There is, therefore, no right to any relief on that ground.
1871.] Lawson et al. v. Kolbenson et al. 421
Opinion of the Court.
The only other grounds are :
First — The withdrawal from the Augustana Synod.
Second — The retention of pastor Petersen after that synod
had pronounced sentence against him.
First, then, as to the withdrawal from the synod: We are
unable to perceive how that act should operate as a perversion
and afford ground of forfeiture on the part of the majority.
The church did not belong to that synod at the time the prop-
erty was conveyed, but to the Northern Illinois Synod. If the
relation is indissoluble then the church still belongs to the
latter synod ; but it seems that it was terminated in the same
way as it was with the Augustana Synod, and in this the mi-
nority acquiesced.
This church organization is unlike those of other denomi-
nations, where they can not exist at all except in subordina-
tion to a higher and controlling organization. This church
had a complete legal existence, self-governing in character,
before it united with any synod. It might have continued on
as it began without being connected with any synod, and ac-
quired a conveyance of lands in the same way as it did. Yet,
so long as the church maintained and observed the doctrines,
tenets and symbols of the Lutheran church, it would have
been entitled to be regarded by other churches of the same
denomination as orthodox, and to continue to use the trust
property free from the interference of the civil courts. This
conclusion is arrived at from a consideration of the testimony
in the cause delivered by learned and reverend gentlemen of
the Lutheran persuasion in respect to the laws, usages and
customs of the church, and there is a clear preponderance of
evidence in favor of the views of the defendants, and by
which views their action seems to have been governed as well
as that of a majority of the church, to the effect that, under
such a connection as that with the Augustana Synod, it was
competent for a majority of the church to sever the union at
any time, and that they lost none of their rights in the prop-
erty of the church by so doing, and we may add that the prior
422 Hays v. O., O. & F. E. V. R. R. Co. [Sept. T.,
Syllabus.
practices of the church are strongly corroborative of the
theory.
If, therefore, the majority had the right to sever their con-
nection with the Augustana Synod, and exercised it on the
18th of April, the sentence of that body on the 27th prohibit-
ing the Rev. Petersen from officiating as pastor of any church
belonging to that synod, would not affect this church, which
did not belong to it.
Upon the whole case, we are of the opinion that the decree
of the court below dismissing the bill should be affirmed.
Decree affirmed.
George W. Hays
V.
The Ottawa, Oswego & Fox River Valley
Railroad Company.
1. Plea — railroad subscription — sale of franchise— failure of considera-
tion. A plea that avers that a subscription to the stock of a railroad com-
pany, to be paid when the road should be completed between certain
points, and, on payment, the subscriber was to receive a certificate for a
like amount of stock; and avers that the company had sold the road to
another corporation, which was operating it: Held, the plea was bad on
demurrer, as, if the charter authorized the sale, the party subscribing must
have known that the power could be exercised ; if there was no such power
conferred, then the sale was void, and on payment and receipt of his cer-
tificate, lie would hold his stock unimpaired, and there was not a failure of
consideration.
2. Same — lease of tlie road. Where a plea averred the same facts, ex-
cept that the company had leased the road: Held, if there was power to
lease, then the subscriber must have known, when he subscribed, that the
power might be exercised, and if there was no such power, then the at-
tempt to lease would not affect the stock, as the lease would be void, and
those running the road would be the mere agents of the original company.
Such a plea presents no defense.
1871.] Hays v. O., O. & F. P. V. P. P. Co. 123
Opinion of the Court.
3. Plea— fraudulent representations. Where the plea averred that the
inducement to subscribe for such stock was to procure a competing line to
another named road, and the agent at the time represented that the road
should remain a competing line, but when completed it was leased to the
competing road: Held, this plea was bad on demurrer, as it fails to aver
that the agent falsely and fraudulently made the representations. Fraud
must be pleaded and proved.
4. Same — evidence. Such representations form no part of the subscrip-
tion, and in such written instruments parol evidence can not be heard to
alter, change or add a condition to them.
Writ of Error to the Circuit Court of Iroquois county ;
the Hon. Charles H. Wood, Judge, presiding.
Mr. L. E. Payson, for the plaintiff, in error.
Mr. B. C. Cook, for the defendant in error.
Mr. Justice Thornton delivered the opinion of the Court:
The sufficiency of the pleas of the plaintiff in error is the
only question presented.
Hays executed his note to the company, by which he prom-
ised to pay it $500 when the iron for the road was laid between
certain points, and, upon payment, he was to receive a certifi-
cate for a like amount of the capital stock of the company.
The first plea is, substantially, that the company had sold
a portion of the road to another corporation, which was oper-
ating and controlling it.
We have not been referred to the charter of the company,
and therefore have no knowledge of the powers granted there-
in. If authority was given to the corporation to sell, then it
has only acted within the scope of the power granted. Per-
sons contracting with it must be presumed to act with full
knowledge of its powers, and can not complain when its acts
are in accordance with the law of its creation.
But a sale and transfer of the powers of one company to
another, without the authority of the legislature, are against
424 Hays v. O., O. & F. R. Y. R. R. Co. [Sept. T.,
Opinion of the Court.
public policy, and the courts will do nothing which would pro-
mote the transfer, as it is in utter disregard of the duties and
obligations of the company. Great Northern Railway Co. v.
Eastern Counties Railway Co. 9 Hare, 306 ; Reman v. Rufford,
6 Eng. Law & Eq. 106; South Yorkshire Railway Co. v. Great
Northern Railway Co. 19 Eng. Law & Eq. 513.
If the sale, then, was without authority granted in the char-
ter, it was merely an unlawful attempt to accomplish what can
only be done by the legislature, and is no defense against the
payment of the subscription.
The second plea presents the question, whether the subscri-
ber is released by reason of the lease of the road to another com-
pany.
If there was power to lease, the subscription must be re-
garded as having been made with reference to it. If there
was not, is the act of leasing such a material and fundamental
alteration of the responsibilities and duties of the company as
to exonerate the subscriber from payment?
Even an alteration in the location of a road, if made by
authority of the law, is no defense to an action for calls. The
reason is, that the party is presumed to contract with knowl-
edge of and reference to the law. Illinois River Railroad Co.
v. Beers, 27 111. 185; Calvin v. Turnpike Co. 1 Carter, 511.
If the leasing was not authorized by law, then the liabilities
and duties of the company to which the subscription was
made, exist in full force, and the courts will hold it to a
strict performance of all its obligations to the subscriber and
to the public. The lessees will only be regarded as its ser-
vants, and the corporation, which received its franchise from
the State, is not, by the act of leasing, discharged from its
contracts or released from any of its liabilities. 0. & M. R.
R. Co. v. Dunbar, 20 111. 623; Chi. & R. I. R. R. Co. v. Whip-
pie, 22 111. 106.
When the plaintiff in error shall have paid his subscription
and received his certificate of stock, he then will have equit-
able rights to be protected by the courts, and may prevent
1871.] Hays v. O., O. & F. R. V. R. R. Co. 425
Opinion of the Court.
gross mismanagement of the property and misapplication of
the funds of the corporation, but. the mere fact of leasing and
probable, or even certain, loss in the earnings of the company
constitute no defense to the note.
The third plea avers, that the inducement to give the note
was a representation by the agent of the company that the
road would be, and should remain, a competing line with the
Chicago, Burlington & Quincy Railroad, but that when com-
pleted it was leased to the intended competing line.
Fraudulent representations made by an agent of a corpora-
tion, and which induce a subscription, would be a substantial
fraud, which would vitiate a contract. But, as the law intends
that every person is innocent of fraud, when it is relied upon
as a defense, it must be fully pleaded and proved. The plea
does not aver that the representations were false and fraudu-
lent, and, for aught that appears, they may have been inno-
cent. As a plea of fraud, it is therefore bad.
The representation contained in the plea forms no part of
the writing sued on, and parol evidence can not be admitted to
add a condition to the written subscription.
We think the demurrer was properly sustained to all the
pleas.
As the plaintiff in error abided by his pleas, the judgment
must be affirmed.
Judgment affirmed.
426 Bressler et al. v. Kent. [Sept. T.,
Syllabus. Opinion of the Court.
Peter Bressler et al.
v.
Frederick H. Kent.
1. Maruied women — conveyance of their interest in real estate. Instead
of proceedings by fine or common recovery under the common law, the
interest of a wife in real estate may be conveyed by deed of herself and
husband. This can be done only in the precise mode prescribed by the
statute. Otherwise such conveyance is void.
2. A mortgage or trust creating an incumbrance upon the lands of the
wife, in which the husband does not join, is void, and will not be enforced,
even though given to secure payment of a note made by herself and her
husband for his debt.
3. Separate estate of the wife comprises only such rights as she may
have independently of her husband, as if feme sole, such as personal prop-
erty, and the rents, uses and profits of real estate.
4. The act of February 21, 1861, " to protect married women in their
separate property," does not go to the extent of authorizing married women
to sell real estate without concurrence of the husband. Such power can
not be implied, but must be given in direct terms.
5. The decision in the case of Young and Wife v. Oraff, 28 111. p. 20, over-
ruled.
Writ of Error to the Circuit Court of Whiteside county;
the Hon. George W. Pleasants, Judge, presiding.
Mr. C. J. Johnson, for the plaintiffs in error.
Messrs. Wilkinson, Sackett & Bean, for the defendant
in error.
Mr. Justice Sheldon delivered the opinion of the Court:
Sabrina Bressler, a married woman, executed, without the
concurrence of her husband, as a party, her separate deed of
trust of certain real estate owned by her, to secure the pay-
ment of a promissory note given by herself and husband for
a debt of the latter, and the question presented by this record
1871.] Bressler et al. v. Kent. 427
Opinion of the Court.
is, did she thereby charge such real estate with the payment
of the debt, and will a court of equity, by a proceeding against
the property, subject it to the payment of such charge?
By the common law, the only mode in which a married
woman had power to transfer her title or interest in real estate,
was by levying a fine or suffering a common recovery.
Oar statute of conveyances has provided that, when any hus-
band and wife residing in this State shall wish to convey the real
estate of the wife, it shall and may be lawful for the husband and
wife to execute any deed, etc., for the conveying of such land,
and that such deed (after the solemnities of examination and
acknowledgment) shall be as effectual in law as if executed by
such woman while sole and unmarried.
It is only in the precise mode prescribed by the statute, that
a married woman can make a valid conveyance of her lands.
That mode was not pursued in the present case, as the hus-
band did not join in the execution of the deed, and the deed
of trust did not create a valid lien upon the land. Cole v. Van
Riper, 44 111. 58 ; Moulton et ux. v. Hurd, 20 111. 137.
Such is the rule at law, and the one that must govern in this
case, unless the rule in equity shall be held to apply, that the
separate estate of a married woman will, in equity, be held
liable for all the debts, charges, incumbrances and other en-
gagements which she does expressly, or by implication, charge
thereon. 2 Story Eq. Jur. sec. 1399.
There is a distinction in this respect, in equity, between the
separate property of a married woman and her other property.
As to the former, she is treated as a feme sole, having the gen-
eral power of disposing of it; but as to the latter, all the
legal disabilities of a feme covert attach upon her. Ibid. sec.
1397.
It is to be considered, then, whether the estate in question
was the separate estate of the wife, in the sense of that term, as
recognized and acted upon by a court of chancery, and subject
to be disposed of by herself alone. Separate estates in mar-
ried women, which courts of equity recognize their right to
428 Bressler et al. v. Kent. [Sept. T.,
Opinion of the Court.
dispose of as femes sole, are strictly equitable estates. They
are always created by deed, devise or marriage settlement, and
the character of separate estate is impressed upon them by the
terms of the instrument creating them.
It was formerly deemed absolutely necessary that the prop-
erty should be vested in trustees, and, in strict propriety, that
should always be done, though it has been established that the
intervention of trustees is not indispensable. 2 Story Eq.
sec. 1380.
It is not because the entire interest in an estate is vested in
a feme covert that renders it of the description of a separate es-
tate in her. A separate estate in a feme covert only exists in
such property, whether it be real or personal, as is settled upon
her for her separate use, without any control over it on the
part of her husband. It is not all the estate, either in lands
or chattels, belonging to a feme covert, nor is it her right of
dower in the real estate of her husband. Albany Fire Ins. Co.
v. Bay, 4 Comst. 9.
The facts in this case disclose no such separate estate in Mrs.
Bressler.
It is claimed that since the passage of the act of February
21, 1861, entitled "An act to protect married women in their
separate property," any real estate which a married woman
owns in her own right will, in equity, be regarded as her sep-
arate property, and subject to all the incidents of such prop-
erty, as before recognized in a court of chancery.
That act provides, "that all the property, both real and per-
sonal, belonging to any married woman, as her sole and sepa-
rate property, or which any woman hereafter married owns at
the time of her marriage, or which any married woman, dur-
ing coverture, acquires in good faith from any person other
than her husband, by descent, devise, or otherwise, together
with all the rents, issues, increase and profits thereof, shall,
notwithstanding her marriage, be and remain, during coverture,
her sole and separate property, under her sole control, and be
held, owned, possessed and enjoyed by her the same as though
1871.] Bressler et al. v. Kent. 429
Opinion of the Court.
she was sole and unmarried, and shall not be subject to the
disposal, control or interference of her husband, and shall be
exempt from execution or attachment for the debts of her hus-
band."
The estate created by the act is as fully for the separate use
of the wife as it could have been made by virtue of the pro-
visions of any instrument in writing.
The rule in equity, that a feme covert, acting with respect to
her separate property, is competent to act in all respects as if
she were sole, must be understood only of personal property,
and of the rents and profits of real estate during her life.
The wife's own reversion in lands, when she owned them at
the time of the marriage, was a legal estate descendible to her
heirs, to which courts of equity did not apply the doctrine
stated. In reference to such an estate, she had only the dis-
posing capacity Avhich the common law or some enabling stat-
ute allowed to her.
So, if an estate is, during coverture, given to a married
woman and her heirs, for her separate use, without more, she
can not, in equity, dispose of the fee from her heirs, but she
must dispose of it, if at all, in the manner prescribed by law,
as in England, by fine or recovery, and here, by the solemn
conveyance required by the statute. But if, in such a case, a
clause is expressly superadded, that she shall have power to
dispose of the estate so given to her during her coverture,
then courts of equity will treat such a power as enabling her
effectually to dispose of the estate.
Thus the limitation of real estate to the wife in fee to her
sole and separate use, did not give her, in equity, the power to
dispose of the fee from her heirs ; to do so, an express power
of disposition must have been given to her by the instrument.
These principles appear to be supported by the following
authorities: 2 Story Eq. Jur. sees. 1391-2, 1397; 2 Roper
on Husb. & Wife, 182; Clancy on Married Women, 287, and
cases cited in notes to these authorities; Yale v. Dederer, 18
430 Bressler et al v. Kent. [Sept. T.,
Opinion of the Court.
N. Y. 265; Same v. Same, 22 Id. 450; Newlin v. Freeman, 4
Iredell Eq. Rep. 312.
The act referred to gives no power to dispose of the estate.
Cole v. Van Riper, 44 111. 58. It only reserves it to the sole
and separate use of the wife. Hence, even under the full ap-
plication of this doctrine of equity, the wife would have no
sole disposing power over the fee of her real estate.
But a married woman's separate estate, under this act, is
a strictly legal separate estate, and we see no reason why she
should not hold it subject to the ordinary disabilities resulting
from her coverture; why the statute should not have full op-
eration upon it, and the mode therein prescribed be the only
one whereby a married woman can dispose of her real estate.
What has been said is entirely aside from the question how
far a married woman, as a necessary incident to the enjoyment
of her separate property, may contract as to matters pertain-
ing to the enjoyment of its use, and is to be taken without any
bearing upon such a question.
The case of Young and Wife v. Graff, 28 111. 20, seems to af-
ford a warrant for the decree of the court below.
Upon fuller consideration, we think the doctrine of equity,
as to a married woman's disposing power over her separate
property, was carried further in that case than the authorities
seem to warrant.
We regard the deed of trust in this case as invalid, and that
the decree of the court below, for the sale of the premises pur-
porting to be conveyed by it, was erroneous.
The decree must be reversed, and the cause remanded for
further proceedings in conformity with this opinion.
Decree reversed.
k
1871.] City of Chicago v. Dermody. 431
Syllabus. Opinion of the Court.
City of Chicago
v.
William Dermody.
1. Negligence — corporations liable for. A city, erecting a public
building, or making an improvement in a negligent manner, is liable for
resulting injury.
2. Responsibility — of principal, for acts of servants, agents and con-
tractors. A contract for such work, to be performed under direction and
supervision of a board of public works and of superintendents, fixes the
liability of the corporation throughout.
3. It is no defense that the contractor abandons the plan prescribed
and substitutes his own without consent, for it is the duty of the corpora-
tion to see that the work be well done, but according to the specifications.
4. Master and servant. The same rule applies, in such case, to the
city as is applied to master and servant. The city, by retaining charge of
the work, must be held responsible for the manner in which it is per-
formed. The contractors are the servants of the city, and the doctrine of
respondeat superior applies. This case falls fully within the case of The
City of Chicago v. Joney, 60 111. 383, and is governed by it.
5. Jury — undue influence. The presence in a jury room, through in-
advertence, of a newspaper containing matter of a nature to influence the
jury, is not cause for setting aside the verdict, after aflirmative proof that
it was not read by them or in their hearing.
6. Verdict — impeachment of. It is the well settled practice that, while
the court will never receive affidavits of jurors to impeach their verdict,
affidavits of jurors will be received to support their findings when at-
tacked.
Appeal from the Superior Court of Cook county; the Hon.
William A. Porter, Judge, presiding.
Mr. I. N. Stiles, and Mr. John Lewis, for the appellant.
Mr. E. A. Otis, for the appellee.
Mr. Justice Walker delivered the opinion of the Court :
This was an action on the case, brought by appellee, in the
Superior Court of Chicago, against the city, to recover for per-
sonal injuries occasioned by the falling of the roof of the City
432 City of Chicago v. Dermody. [Sept. T.,
Opinion of the Court.
Hall. It consisted of a wing on the west end of the court
house. It was in the process of completion at the time of
the accident, and appellee was engaged as a plasterer in the
employment of Doyle & Johnson, sub-contractors. The roof
which fell was constructed by Letz & Son, who had contracted
with the city to construct the iron work of the building.
The work was done under an ordinance, of which this is the
material portion :
" The Board of Public Works are hereby authorized and di-
rected to advertise for proposals, and to proceed to contract for
and cause to be erected, a wing on the west side of the court
house, to correspond, in its outward appearance and design,
with a wing to be erected by Cook county on the east side of
the court house, and according to plans furnished by Messrs.
Hose <& Chapman, architects, the internal arrangements to be
subject, however, to such modifications as shall be deemed by
said board best for the interests of the city of Chicago."
These plans of Rose & Chapman, with the specifications at-
tached, were the basis upon which the contracts for erection
and completion of the building were made. But it is con-
tended that Letz & Son constructed the roof according to their
own plans, and the roof thus constructed fell and produced the
injury.
The trial in the court below resulted in a verdict and judg-
ment in favor of appellee.
It is contended that, inasmuch as Letz & Son failed to fol-
low the plana of the architects, and constructed the roof on
plans of their own, the city was thereby absolved from all
liability for the injury sustained by appellee; that such de-
viation rendered Letz &■ Son alone liable to compensate ap-
pellee for the injury.
It is conceded, and if it were not, the evidence establishes
the fact, that the roof was insufficient in its construction, as it
fell from the weight of but a few inches of snow which had
fallen on it.
1871.] City of Chicago v. Dermody. 433
Opinion of the Court.
Section 11 of chapter 6 of the city charter declares that, it
shall be the duty of the board of public works to take special
charge and superintendence, subject to such general ordinan-
ces as may be adopted, of all streets, alleys, etc., all public
places, public grounds, and all markets, market places and
market houses, engine houses, hospitals, armories, and all other
public buildings in the city, and of the erection of public
buildings.
From this provision it is apparent that the erection of the
City Hall was under the especial charge of the board of public
works. That duty is imposed by the charter, and could not,
so far as we can see, have been transferred to any other officers
of the city. The city might, under this provision, by general
ordinance, control the action of the board, so as to have them
subject to the will of the common council, but the board acts
under the power conferred by the charter in the manner di-
rected by the common council.
The board of public works, then, had the control and charge
of this building, and the question is fairly presented whether
the contractors are the servants of the city, and the doctrine
of respondeat superior applies.
In the case of The City of Chicago v. Joney, 60 111. 383,
this court held that the contractors with the city to deepen
a portion of the Illinois and Michigan canal outside of the
city limits, the work being done under a statute of the State
for the benefit of the city, were the servants of the city, and
it was liable for the negligence of the contractors which
produced injury and loss to 6, person using the canal. That
case proceeds upon the principle that the city is the party
having the work performed, and the work is under the control
of the board of public works, who are officers and agents of
the city, and that they are required to see that the work is
properly done ; that the same rule applies in such cases to the
city as is applied to master and servant; that the city, by re-
taining the charge of the work, must be held responsible for
the manner in which it is performed.
28— 61st III.
434 City of Chicago v. Dermody. [Sept. T.,
Opinion of the Court.
In this case the plans and specifications were prepared, sub-
mitted to and adopted by the common council, and an ordin-
ance adopted requiring the construction of the building. The
ordinance requires the board of public works to advertise for
proposals, and to proceed to contract for and to cause to be
constructed the building of this City Hall. The statute, as
well as the ordinance, put the erection of the building in
charge of the board of public works. They were thus em-
powered and required to take charge of the construction of
the building, and it was their duty to see, through their archi-
tect or otherwise, that the work was performed according to
the plans and specifications for the building adopted by the
common council.
If those having charge of the construction or repair of
streets, bridges, etc., permit obstructions, pits, or other dan-
gerous places, to be made in the streets by the contractor with-
out being properly guarded, the city is liable for injury that
may ensue, because the work is in the charge of the proper
city officer, and is being done by authority of the city. Nor
is it an answer in such a case to say the contractor departed
from his contract or violated the city ordinances in perform-
ing the work, as it is the duty of the officer having charge of
the improvement to see that the plans are pursued and the
proper precautions taken to secure the safety of the public;
and it is negligence on the part of such officers in failing to see
that they are adopted. And the same rule must prevail where
the city or its officers have charge of the erection of a public
building for the use of the city. The principle is the same,
and the rule must be the same. But this case falls fully with-
in the case of The City of Chicago v. Joney, supra, and is gov-
erned bv it.
Here the board of public works had the charge and super-
intendence of the work, and it was negligence in them to per-
mit Letz & Son to depart from the plan adopted by the com-
mon council, and the city being in charge of the work through
1871.] City of Chicago v. Dermody. 435
Opinion of the Court.
their board of public works, must be held liable for all the
consequences of that neglect.
The board of public works should have prevented or ar-
rested the contractors from substituting other plans. They
should have known, either by personal inspection or through
their architect, that the change was being made, and have ar-
rested it.
The evidence shows that the plans of Letz & Son were de-
fective, and that they were the cause of the injury.
The city, having undertaken to construct this building, was
bound to employ skillful and faithful contractors to carry out
such plans as may or would be adopted by skillful and reliable
architects. But in this case the board of public works per-
mitted the contractors to reject the plans furnished by archi-
tects and adopted by the city, and to adopt plans of their own,
and there is no evidence that their plans were the result of
skill, safe, or at all sufficient. On the other hand, we see the
roof gave way and fell under the weight of but a few inches
of snow. This, with the other evidence, renders it almost cer-
tain beyond a reasonable doubt that the plan adopted by the
contractors was inherently defective.
It is next urged that the verdict of the jury should have
been set aside, because a copy of a newspaper called "The
Chicago Tribune/' containing the charge of the judge of the
recorder's court of Chicago to a grand jury, calling their at-
tention to the fact that the roof of the Hall had fallen, had
been left in the jury room. This fact was shown to the court
by the affidavit of the office/ having the jury in charge, when
deliberating on their verdict. But it appears that the paper
having been there was purely accidental, and one of the jurors
filed an affidavit that the jury had agreed upon their verdict
and were discussing the measure of damages when the paper
was discovered under the table, was picked up by a juror and
handed to affiant, who laid it on the table, where it remained
without any juror having read one word in it before the ver-
dict was complete.
436 Aiken v. Hodge. [Sept. T.,
Syllabus.
If this be true, we are at a loss to perceive how it is possible
that any, the slightest, injury, could have resulted to appellant
from the paper being in the room; and it is the well settled
practice that, whilst the court will never receive affidavits of
jurors to impeach their verdict, affidavits of jurors will be re-
ceived to support their finding, when attacked. It is only
when it appears to the court that injury may have resulted to
a party from such an inadvertence, that the court should set
aside the verdict. Had the paper been read, then it might,
perhaps, have been ground for a new trial, as the judge's charge
would have been before, and considered by, them, and not
admitted by the court as evidence, and which might have been
prejudicial to appellant. But in this case we see no such in-
jury could possibly have resulted.
We perceive no error in this record, and the judgment must
be affirmed.
Judgment affirmed.
James Aiken
v.
John M. Hodge.
1. Testimony — inadmissible. Where parties enter into an arrangement
to develop a patent for the improvement of street cars, it is error, when it
is sought to charge one of the number for money loaned him by another
of its members, to admit in evidence conversations between other mem-
bers of the firm when defendant was absent, and which occurred prior to
his connection with the speculation, and which were not communicated to
him.
2. Same — hearsay — not admissible. Evidence of the opinions expressed
by persons in New York and elsewhere as to the value of an invention,
was hearsay, and inadmissible. If such opinions could be received, the
persons expressing them should have been called.
1871.] Aiken t>. Hodge. 437
Statement of the case. Opinion of the Court.
3. Declarations of third parties should not be admitted in evidence
until the party against whom they are offered is connected with them.
4. Same — declarations of a, party. It is error to permit a party to intro-
duce his own declarations in reference to the matter in dispute, made when
the person against whom they are offered was not present. The party is
a competent witness, and should be introduced to prove the facts.
Writ of Error to the Circuit Court of La Salle county;
the Hon. Edwin S. Leland, Judge, presiding.
This was an action of assumpsit, brought by James Aiken,
in the La Salle circuit court, against John M. Hodge, for
money loaned and advanced at the request of defendant.
It appears that these parties, with others, undertook to de-
velop an improvement in street cars; and it is claimed by
plaintiff below that defendant borrowed of him $500, with
which to purchase a share in the enterprise, and that he prom-
ised to repay it some time after the loan was made. He also
claims that he, by agreement, was to advance all expenses, and
that defendant Avas to refund to him one-half thereof; that he
did advance $954.12, one-half of which defendant was to pay
to him.
Defendant wholly denies that he borrowed the money or
agreed to pay any portion of the expenses of developing the
invention.
A trial was had before a jury, who found a verdict in favor
of defendant. A motion for a new trial was entered, which
the court overruled and rendered judgment on the verdict,
and the plaintiff brings the- case to this court by appeal.
Messrs. Bushnell & Avery, for the plaintiff in error.
Mr. Oliver C. Gray, for the defendant in error.
Mr. Justice Thornton delivered the opinion of the Court :
The claim in this case is based upon the assumed express
or implied contract of appellee to pay appellant for money
loaned.
438 Aiken v. Hodge. [Sept. T.,
Opinion of the Court.
These parties, with four other persons, engaged in a specu-
lation to develop, for their profit, an improvement on street
cars.
There was conflict in the evidence as to the advance-
ment of any money by Aiken to Hodge. The discrepancy
between them, as to the facts, is very plain and decisive, and
«\ve shall make no attempt to reconcile it. The court below,
however, erred in the admission of improper and irrelevant
evidence, for which the judgment must be reversed
The several conversations between the two Schneiders, Pet-
rie and Hodge, when Aiken was not present, and prior to his
connection with the speculation, and which were not commu-
nicated to him, were clearly incompetent. They could not
enlighten the issue, and may have confused the jury.
The opinions of divers persons in New York and elsewhere,
as to the value and practical character of the invention, as
detailed by witnesses who heard them, were but hearsay. The
facts as to the payment of money by other persons, to obtain
an interest in the patent, were improperly admitted.
What was the object of such evidence? It was evidently
introduced by appellee to negative his alleged liability for
money loaned, and must have been intended to impress the
jury with the belief that the invention was valuable, and that
Aiken paid $1000, double the amount paid by either of the
other parties, on account of the intrinsic value of the patent,
and not upon any agreement that Hodge should refund the
one-half of the money advanced and other expenses incurred.
Two questions were to be determined by the jury: "Was
there any money loaned? Did Hodge, agree to return to
Aiken one-half of the money expended in the development of
the patent?
The expressed opinions of third parties, that it would prove
a success, shed no light on these questions, and afforded no aid
to the jury, unless improperly applied. There was no pre-
tense that appellant had any knowledge of these statements,
or that other persons had invested money in the patent.
1871.] Union Building Asso'n v. City of Chicago. 439
Syllabus.
Declarations of this character should never be admitted un-
til the party against whom they are used is connected with
them. Prior v. White, 12 111. 261.
We are strongly inclined to the opinion that the jury was
influenced by this testimony, and thus the rights of appellant
were prejudiced.
It was also error to permit witnesses introduced by appellee
to detail his statements as to the nature and character of the
transaction between himself and appellant, when the latter
was not present. He was a witness at the hearing, competent
under the law, and should have rehearsed his own story.
We express no opinion as to the preponderance of the evi-
dence, as the judgment must be reversed, and the cause re-
manded for another trial.
Judgment reversed.
Union Building Association
v.
The City of Chicago.
1. Void assessment — makes void all proceedings dependent upon it. The
city of Chicago made an original assessment which was declared void. A
second assessment to make up its deficiencies is also void.
2. Excessive levy void. If after the completion of a work, a levy is
made in gross excess of the ascertained cost, it is fraudulent.
8. Official oath. If commissioners are sworn to perform a particu-
lar duty, and they proceed to acts not authorized by law nor within the
scope of their oaths, their acts are unlawful and their proceedings void.
4. Unlawful assessment— effect of payment of. Owners of property
having paid assessments which are subsequently set aside, can not recover
it back, such payment being deemed in law voluntary.
5. Remedy — can not he restricted to particular proceedings. Courts will
not impute to the legislature the intention of nullifying the judgments
and decrees of courts of general jurisdiction in advance, when it would be
440 Union Building Asso'n v. City of Chicago. [Sept.T.,
Opinion of the Court.
beyond the constitutional power of that body to do so after they were
made ; and especially in relation to statutory proceedings to divest the
citizen of his property without his consent by confining the citizen to
a particular mode of seeking his remedy.
6. Unconstitutional law — can not be executed by tlie courts. If the
legislature has prescribed a mode for making a statutory proceeding
effectual which is unconstitutional, the courts have no authority to reject
that mode and adopt a different one. The legislature must provide the
correction.
Appeal from the Superior Court of Cook county ; the Hon.
Joseph E. Gary, Judge, presiding.
Messrs. Fuller & Smith, for the appellant.
Mr. M. F. Tuley, for the appellee.
Mr. Justice McAllister delivered the opinion of the
Court :
It is A-ery apparent, from the record in this case, that the
proceedings relative to the original assessment were, from
their first inception and through evety stage, totally void. In
1858, the street in question was raised to grade, curb walls
built upon both sides thereof, filled, and paved with stone
pavement, by special assessment upon real estate deemed spe-
cially benefited.
Being thus situated, the original ordinance was passed un-
der the recommendation of the board of public works, in the
same form, ordering the curb Avails on Washington street,
from the west line of State to the east line of Franklin street,
to be rebuilt and repaired where the same were not then in a
suitable condition, and said street to be paved with wooden
blocks except such portions of the work as had already been
done in a suitable manner, the Avork to be done under the
superintendence of the board of public Avorks. The sum of
82887.40 Avas the basis of the assessment for the curb Avails,
1871.] Union Building Asso'n v. City of Chicago. 441
Opinion of the Court.
$24,790.79 for the paving, $276.78 for engineering and super-
intending, and $225 for the costs of the proceeding, making
the total sum of $28,179.97
A similar ordinance has been held by this court to vest in
the board an improper and illegal discretion, opening the door
to fraud, and therefore void. Foss v. The City of Chicago,
56 111. 354.
Not only was the ordinance void for the reason assigned,
but the subsequent proceedings, though strictly in conform-
ity with it as to the parts which vitiate, were variant from it
as to the description of the work. In the oath of the com-
missioners, certificate of the completion of the assessment,
notice of application to the council for confirmation, and in
the assessment roll itself as confirmed, the extent of the im-
provement was designated as being that portion of Washing-
ton street from the west line of State to the west line of
Franklin street, thus extending the work across Franklin
street without any ordinance directing it.
It appears that, at the time of the application for the new
ordinance, the work was all completed, and so stated in the
commissioners' report, so that the actual cost of it was known
to the board; that upwards of $14,000 had been voluntarily
paid by the property owners upon the amount assessed upon
real estate deemed specially benefited ; that the actual cost
of the paving, ascertained from reliable data, viz: the contract
under which it was done, and a careful measurement by a
competent engineer, was only $15,202.00, being $9,585.79 less
than the estimated cost which was made the basis of the orig-
inal assessment, and which actual cost, when added to the
$2887.40, the estimated cost of repairing the curb walls,
shows the total actual cost — assuming that the item for curb
walls was actual— to be $18,092.40. Then, if we deduct the
$14,194.03 voluntarily paid by the property owners, Ave have
$3898.37 as the whole amount necessary to pay for the entire
work, allowing the sum of nearly $3000 under the provision
442 Union Building Asso'n v. City of Chicago. [Sept.T.,
Opinion of the Court.
for "rebuilding and repairing the curb Avails where the same
are not now in a suitable condition. "
The board of public works, from their position with rela-
tion to the matters in question, must be held chargeable with
knowledge of all material facts.
When they made application to the council for an ordi-
nance authorizing a new assessment, they stated that the
work had been done and fully completed. This made it ap-
parent that they knew what had been the actual cost of it,
but no allusion is made to that subject, and they simply state
that there was the sum of $8339.15 which the city had failed
to collect of the original assessment, and ask an ordinance-
authorizing them to levy that amount upon what they please
to call the delinquent property of the real estate specially
benefited.
The council, without inquiry as to the actual cost, pass the
ordinance. When the assessment roll is completed under this
ordinance, the parcels of land included in it are assessed pre-
cisely as they were in the original. Appellant's lands are
assessed for §834.28, the exact amount in the original. The
new assessment is necessarily upon the same basis as the for-
mer. It requires them to pay their proportional share for the
paving at the sum of $24,790.19, the amount of the original
estimate, instead of $15,205.00, the actual cost. It requires
them to pay their proportional share of $225, the estimated
costs of proceedings which, as to them, are utterly void. And
if the new assessment is to be held valid and the amount col-
lected, then the city will have obtained, perhaps, by divesting
the owners of their property after the completion of the work
and the actual cost become known to a cent, a sum not far
from §4440 above that which is actually necessary to pay for
the whole work at its actual cost. Upon what considerations
of justice, reason or law, can this be sustained? None have
been suggested but the mere letter of the 36th section of chap-
ter 7 of the city charter, (Gary's Laws, 75.) Having departed
from both the letter and spirit of the law in every step
1871.] Union Building Asso'n v. City of Chicago. 443
Opinion of the Court.
through the original proceedings, the city authorities have
become rigid adherents to the very letter in the supplement-
ary ones. The counsel for the corporation insists that, under
said section, the new assessment must be for the deficiency of
the former one because the statute says so, and not for the
actual cost of the work.
We have given that section much attention and viewed it
in every light in which it has been presented by able counsel
in the variety of cases before us. It is very peculiar in its
provisions, and seems to betray a design not exactly to take
away the general jurisdiction of the courts, but to place these
original assessments, in a measure, beyond the effects of their
decrees and judgments. "If, from any cause," it says, "the
city shall fail to collect the whole or any portion of any spe-
cial assessment which may be hereafter levied, and which shall
not be canceled and set aside by the order of any court upon certio-
rari or appeal" etc., "the common council may, at any time
within five years after the confirmation of the original assess-
ment, direct a new assessment to be made upon the delinquent
property for the amount of such deficiency and interest thereon
from the date of such original assessment, which assessment
shall be made as near as may be in the same manner as is
herein prescribed for the first assessment." It then declares
that, in cases where partial payments shall have been made
on the former assessment, they shall be credited ; that re-
peated new assessments may be made, provided they are com-
menced within said five years ; that it shall constitute no legal
objection that the property has changed hands meanwhile,
and then employs these words : "It being the true intent and
meaning of this section to make the cost and expense of all
public improvements, to be paid for by special assessment,
a charge upon the property assessed therefor for the full pe-
riod of five years from the confirmation of the original assess-
ment, and for such longer period as may be required to col-
lect in due course of law any new assessment ordered by the
common council within that period."
444 Union Building Asso'n «. City of Chicago. [Sept.T.,
Opinion of the Court.
It is manifest that, ff the language, "if, from any cause, the
city shall fail, etc., to collect, etc., any special assessment
which may be hereafter levied, and which shall not be can-
celed and set aside by the order of any court upon certiorari or
appeal/7 be taken literally, the courts would be required to
regard an original assessment, when considered in its relation
to a second one, as valid, for the purpose of ascertaining a
deficiency, determining delinquency, drawing interest, and con-
stituting a lien for the period of five years and upwards.
Even though the city may have failed to collect such orig-
inal assessment by reason of the decree of a court of chancery
declaring it void, upon the bill of the property owners alleg-
ing that it was made in fraud and through excess of power,
because, in such case, it would not "'have been canceled and set
aside by the order of any court upon certiorari or appeal." If
not so canceled and set aside, it is to be regarded as valid for
the purposes specified, no matter how many grounds may
exist for declaring it void, or what court may have done so in
any proceeding other than upon certiorari or appeal.
The limitation to a judgment upon certiorari and appeal,
which are seemingly exclusive of other judgments or decrees,
has reference to the removal of the record in that mode from
the common council to the circuit or Superior Court. We
have shown in other decisions how circumscribed and almost
impracticable those remedies were made by the charter. Cre-
ate v. The City of Chicago, 56 111. 422. Hence we say, that
there was apparently a design on the part of the draughts-
man of the section to place these original assessments beyond
the reach of judicial power except when that power should
be exercised in the circumscribed and, in many instances,
impracticable manner specified.
But the section can receive no such literal construction.
We will not impute to the legislature the intention of nullify-
ing the judgments and decrees of courts of general jurisdic-
tion in advance, w7hen it would be beyond the constitutional
1871.] Union Building Asso'n v. City of Chicago. 445
Opinion of the Court.
power of that body to do so after they were made, and espe-
cially in relation to statutory proceedings to divest the citi-
zen of his property without his consent.
Whenever, therefore, the question may be properly pre-
sented to a court of competent jurisdiction, whether the pro-
ceedings under which an original assessment has been made
are valid or not, and they shall be found to be void, for. fraud,
or want of compliance with the statute, they must be so re-
garded as to all parties who have not estopped themselves by
their acts from questioning them. Any other rule would be
to introduce a dangerous, monstrous anomaly into our system,
because it would be to declare by judicial authority that, al-
though the original assessment was entirely void as to all par-
ties not estopped by their acts from assailing its validity, yet,
even as to such persons, it should be regarded as furnishing
the legal standard by which to determine a deficiency, as afford-
ing a proper basis for interest, as constituting a lien for the pe-
riod of five years, and possibly longer, and not to be affected
by alienation of the property.
This section 36 was originally embraced in the act of 1863,
entitled "An act to reduce the charter of the city of Chicago
and the several acts amendatory thereof into one act and re-
vise the same."
By section 21 chapter 7 of that act, the assessment was di-
rected to be made upon the real estate fronting upon the street
to be improved, requiring each such parcel to sustain the cost
and expense of making the improvement upon half of the
street directly adjacent. This mode having been declared
unconstitutional in the case of City of Chicago v. Lamed et cd.
34 111. 203, decided at the April term, 1864, the legislature,
by an act approved February 15, 1865, and the acts of March,-
1867, provided, in accordance with the principle of that deci-
sion, that such costs and expense should be assessed by the
commissioners upon the real estate by them deemed benefited
by any such improvement, and upon the city, in proportion
as nearly as might be to the benefits resulting thereto.
440 Union Building Asso'n v. City of Chicago. [Sept.T.,
Opinion of the Court.
Inasmuch as the 21st section provided for an assessment
upon frontage only, and that was contained in the same chap-
ter of the act containing the 36th section, which declares that
the new assessment "shall be made, as near as may be, in the
same manner as is herein prescribed for the first assessment,"
it is argued that, because the 21st section contained the only
statutory provision relative to the manner of making the first
assessment, and inasmuch as that was declared unconstitu-
tional and consequently abrogated by the decision in the
Larned case, there Avas then no authority left for making a
new assessment. This was, at that time, true.
In Ross v. Irving, 14 111. 182, this court said: "In our
view, the law must be carried into effect in the manner pre-
scribed by the act itself or not at all. It is a statutory pro-
ceeding, and if the legislature has prescribed a mode for mak-
ing it effectual which is unconstitutional, the courts have no
authority to reject that mode and adopt a different one." This
observation is applicable to this feature of the case. When
the legislature had provided for a particular mode of making
the assessment, and that was held unconstitutional, the courts
had no authority to adopt a different one until the legislature
had provided it. But the acts of February, 1865, and of
March, 1867, providing that the amount directed to be as-
sessed should be upon the real estate deemed benefited by the
improvement, and upon the city, in proportion as nearly as
might be to the benefits resulting thereto, did provide a dif-
ferent mode from that declared unconstitutional, were amend-
atory of the act of 1863, and the manner prescribed by the
amendatory acts for making the assessment was thereby sub-
stituted to the place of that provided for in the 21st section,
which was abrogated.
Though the question is not free from difficulty, still we are
of the opinion that a new assessment may be made under the
36th section, taken in connection with the amendatory acts of
186-0 and 1867, although the original one was illegal and void;
but it must be made, as nearly as practicable, in the manner
1871.] Union Building Asso'n v. City of Chicago. 447
Opinion of the Court.
pointed out in those amendatory acts for a first assessment.
The question as to how this is to be done was not, and could
not have been, involved in the case of City of Chicago v. Ward ,
36 111. 9, because that case was decided at the April term,
1864, and of course before, the statute of 1865 was passed.
Xor was it decided in the case of Laflin et al. v. City of Chi-
cago, 48 111. 449. But in the latter case, the court expressly
refused to sanction the allowance of interest upon an original
assessment which was void.
The effect of the statute authorizing a new assessment is,
that the same shall be made, as nearly as may be, in the same
manner as is prescribed for the first assessment. It must, in
all cases, be a de novo proceeding. Its departure from the pre-
cise mode of making the first assessment can be justified only
so far as may be required by the circumstances of each case.
Where no payments have been made, and from the circum-
stances of the work the amount of the costs and expense rests
upon estimates alone, then it must be made in all respects
like a first assessment. But when payments have been vol-
untarily made under the original, in whole or in part* then,
although such original assessment may be void, still the pay-
ments must be allowed to apply; if in full, they operate to
discharge the land in respect to which they were made ; if
partial, they are a discharge pro tanto. It would be against
the rules of a sound public policy to permit the city to receive
such payments, then alleging the invalidity of its own proT
ceedings, repudiate them, and subject parties, who have acted
in the spirit of obedience t# the law, to the costs, trouble and
expense of overhauling proceedings already carried to full sat-
isfaction by the voluntary acts and mutual consent of compe-
tent parties. But payments so made under void proceedings,
are to be regarded as good only between the parties making
them, and the city; so that, if made under an estimate which
turns out to have been too large, the excess can not be made
out of the non-paying lands because that would be holding
the proceedings valid for the purpose of adjusting supposed
448 Union Building Asso'n v. City of Chicago. [Sept.T.,
Opinion of the Court.
rights between parties who were estopped by their acts from
questioning their validity, and those who were not so estopped.
If, then, payments are to be thus allowed, and the proceed-
ings under which they were made to be regarded as void in
respect to all parties not estopped by their acts from question-
ing them — if, as between the paying and the non-paying par-
ties under the original and void assessment, there can be no
legal rights for adjustment, then does it not follow that, in
making a new assessment under circumstances where the
amount must rest on estimates, such estimate should be made
and reported as required by the acts of 1867, the whole amount
paid under the original deducted from it, and the balance only
levied upon the non-paying real estate deemed specially ben-
efited, upon the principle of the equation of burden and ben-
efit? In such case, the matter lies between the non-paying
lands under the original assessment, and the city. Heal es-
tate, for which payment in full has been made under such
original assessment, is no further concerned in the new assess-
ment than as maybe necessary for the purpose of ascertaining
the ratio of burden and benefit in respect to the other lands on
which the balance is to be levied, and the city, as provided in
the acts of 1867.
So in this case, where the improvement had been fully com-
pleted under the original and void proceedings before any
steps were taken in the new ones — where the actual cost was
known and found to be far less than the estimated cost in the
former proceeding, so that those paying under the former
have paid more than their due share, it was not proper, under
our views of the question, to take the former estimated cost as
the standard in levying the new assessment,, and thereby assess
lands for which no payments had been made under the old
assessment, at the same sum as in such former assessment.
But the payments made under the void proceedings must be
regarded as purely voluntary, discharging the lands for which
they were made, it is true, though not affording ground for a
1871.] Good v. Fogg. 449
Syllabus.
legal claim upon the balance to be levied on other lands to
have any supposed excess refunded.
Such voluntary payments must be applied upon the cost of
the work, and the balance unpaid ascertained, The ordinance
of the council, after designating such balance, must then spe-
cify what amount of such balance shall be assessed upon the
property deemed specially benefited, and what chargeable to
the general fund. The portion to be assessed upon the real
estate deemed specially benefited, must be assessed in the man-
ner, as nearly as may be, for a first assessment.
This new assessment involves a gross departure from the
requirements both of the statute amd justice, and can not be
approved by this court.
There are various other questions made in this case which
we shall not refer to. The collector was unauthorized to ap-
ply for judgment.
The judgment of the court below will be reversed and the
cause remanded.
Judgment reversed.*
t
Walter Good
v.
Zimki Fogg.
s
Personal PROPBitT?*=*a!gwip£ from execution, Under the law of 1843,
exempting personal property from levy and sale on execution, the person
entitled to the benefits of the act may select a horse of less value than $60,
under the clause allowing him property to that amount, suitable to his oc-
cupation and condition. Under the act of 1861, such person is entitled to
hold, among other articles, a horse worth not exceeding $100, in addition
* The case of James L. Chapman et al. v. The Crrr of Chicago, an appeal from the
Superior Court of Cook county, is controlled hy the foregoing opinion, and the judgment
of the court below is reversed and the cause remanded.
29— 6 1st III.
450 Good v. Fogg. [Sept. T.,
Opinion of the Court.
to the articles exempt under the law of 1843 : Held, that a person entitled
to the benefit of these exemptions, may hold, under both statutes, a horse
worth not exceeding $160; that these acts are not to receive a strict con-
struction, and that, according to their spirit, a person thus situated may, in
his claim, unite both laws.
Writ of Error to the County Court of LaSalle county;
the Hon. C. H. Oilman, Judge, presiding.
Mr. Frank Crawford, and Messrs. McDonald & Wedg-
wood, for the plaintiff in error.
Messrs. Stipp, Bowen & Shepherd, for the defendant in
error.
Mr. Justice Walker delivered the opinion of the Court :
Appellant, in his argument, insists that the court below
erred in giving appellee's first and second instructions, and in
refusing appellant's eleventh. The qnestion which they pre-
sent is the construction of our statute which exempts personal
property from levy and sale under an execution.
The first enactment was adopted in 1843, and was re-enacted
in the Revised Statutes of 1845, ch. 57, sec. 33, and is still in
force. The next is the act of 1861 (Sess. L. 121). The 33
section of chapter 57 declares that a number of articles of
personal property shall be exempt from levy and sale on exe-
cution, naming them, and then declares that " $60 worth of
other property, suited to his or her condition in life, to be select-
ed by the debtor," shall also be exempt, when the debtor is the
head of a family, and resides with them, etc.
The act of 1861 declares that, in addition to the property
now exempt from levy and sale, the family pictures, school
books and family library, household furniture of the value of
$100, one yoke of oxen or one horse in lieu thereof, not exceed-
ing $100 in value, with the harness therefor, and one plow
and harrow, etc., shall be exempted.
1871.] Good v.Fogg. 451
Opinion of the Court.
The question arising is, whether a person, having no other
property not exempt, suitable to his condition in life, but hav-
ing a horse worth not more than §160, but more valuable than
either exemption, may claim and hold the animal under both
statutes.
It is apparent that the horse could not be claimed under
either, as it was worth more than the sum named in each. Had
it been worth no more than $60, it could have been claimed
under either, as it would have fallen within the spirit, if not the
letter, of each law.
A thing named in a statute is not within its provisions un-
less it be within the intention of the framers of the act. " In
the exposition of a statute, then, the leading clue to the con-
.struction to be made, is the intention of the legislator, and
that may be discovered from different signs. As a primary
rule, it is to be collected from the words ; when the Avords are
not explicit, it is to be gathered from the occasion and neces-
sity of the law, being the causes which led the legislature to
enact it. But, in arriving at a conclusion from these premises,
the greatest care and circumspection, and the exercise of the
soundest judicial discretion, are required." Dwarris on Stat.
693.
Then, what was the occasion or necessity which moved the
legislature to the adoption of these laws? It was the humane
principle, that a creditor should not wholly deprive the husband
and father of the means of supporting his family, usually help-
less in themselves, and preventing them from becoming a pub-
lic charge. Great Britain, and the various States of the
Union, for this reason, have long had such enactments.
These statutes have not declared what shall he done in a
case like the present, and we are left to ascertain the legisla-
tive intention, by inference or interpretation. Seeing the in-
tention and purpose that actuated the legislature in adopting
these acts, we can not doubt that had such a case occurred to
them, they would have embraced it in the language of the
law, because it is fullv within its reason. Unless this claim
452 Good «. Fogg. [Sept. T.,
Opinion of the Court.
is sanctioned, then we find a persoil with property not within
the letter of either, but within the spirit and reason of both
acts, who could have no benefit from their enactment.
To hold that appellee can not claim this property, is to hold
that he may be stripped of all the property of this class that
the law-maker intended he should hold. To permit him to
retain it, gives him the horse tinder the more recent statute, as
it intended he should have, aild it gives him, at the same time,
the {60 worth suited to his condition in life, under the prior
law j and, notwithstanding it is but one horse, it is within the
reason of the law, and is permissible under these enactments.
It was held, in the case of Cornelia v. Ellis, 11 111. 584, the
debtor might, under the clause authorizing him to select $60
worth of property, suitable to his condition in life, select and
hold a horse of less than that value. From this, and other
cases in our reports, it will be seen that the court has not been
inclined to give these statutes a strict construction, but have
endeavored to execute them according to the intention which
actuated the legislature in their adoption.
Then, if a debtor may select and hold a horse not worth
$60, under the former act, and another under the latter act
worth not more than $100, why may he not hold one horsdj
under both acts? The reason is the same in the one case as
in the other.
This was the view taken of these statutes by the court be-
low, in his instructions, and it was correct.
A careful examination of the evidence has failed to show us
that it is not sufficient to sustain the verdict.
Seeing no error in this record, the judgment of the court
below must be affirmed.
Judgment affirmed.
1871.] BlJRNHAM V. MlJLLER. 453
Syllabus. Opinion of the Court.
George E. Burnham
V.
Henry Mtjller.
1. Chattel mortgage — of the possession of the property. A chattel
mortgage provided for the mortgagor to retain possession of the property.
On the day the mortgage matured, without the mortgagee taking posses-
sion of the property, the time of payment of the debt secured thereby was
extended, and, at the same time, the old note was surrendered and a new
mortgage was executed and a new note was taken for the old debt and ac-
crued interest and a small additional advancement of money: Held, that
the neglect of the mortgagee to take possession of the property rendered
the first mortgage void as to creditors, and the lien of the second mortgage
was subsequent to that of an execution against the mortgagor which came
to the bauds of the officer after the execution of the first mortgage, but
before the execution and recording of the second.
2. When the first mortgage ceased to be operative as to the rights of
creditors by reason of the failure of the mortgagee to take possession of
the property, the lien of the execution then attached and related back to
the time when the officer received it.
3. While a chattel mortgage providing for the mortgagor to retain pos-
session of the property may be made, under our statute, so as to be valid
for two years, jret, where the parties fix the time for less than two years,
the time so fixed must control as to when the lien shall cease to operate.
And if the mortgagee neglect to reduce the property to possession upon
default of the mortgagor, or within a reasonable time thereafter, to be de-
termined by the situation of the parties, he loses his lien as against the
rights of third persons, and, as affecting the interests and liens of such, the
mortgage becomes a void instrument.
Appeal from the Superior Court of Cook county ; the Hon.
William A. Porter, Judge, presiding.
y
Mr. John H. Roberts, for the appellant.
Messrs. Merriam & Taylor, for the appellee.
Mr. Justice Thornton delivered the opinion of the Court :
This is a contest between an execution creditor and a mort-
gagee.
Appellee held a chattel mortgage on the property of one
Vore, which matured on the 21st of April, 1870. On that
454 Burnham v. Muller. [Sept. T.,
Opinion of the Court.
day, without taking possession of the property, the time of
payment was extended, a new mortgage was executed, and a new
note taken for the old debt and accrued interest, and a small
additional advancement of money.
On the 20th of April, the execution, which was levied on
the mortgaged property, was placed in the hands of the officer.
The surrender of the old note, secured by the first mortgage,
and the execution of the second mortgage, under which the
property in controversy is claimed, were acts performed on the
same day.
Did the neglect to take possession of the property under the
first mortgage render it void as to creditors? Can the second
mortgage hold the property against the execution, when the
latter was in the hands of the officer, before the execution and
recording of the former?
We have been referred to several cases which are claimed
to be decisive of these questions.
In Hill v. Beebe, 3 Kernan, 556, it was decided that a first
mortgage was not extinguished by the mere act of surrender
of the note secured by it, after default in payment, and the
taking of a new note and a second mortgage on the same
property. The reason given is, that there was no surrender or
cancellation of the first mortgage, and its extinguishment
would not be inferred, in the absence of proof.
This decision is based upon the principle, that the taking
of a debtor's note docs not merge or extinguish the original
demand. The mortgage was merely the security for the debt,
and until the debt was discharged, the mortgage must remain
as the security.
To the same effect is Gregory v. Thomas, 20 Wend. 17.
So it was held in Packard v. Kingman, 11 Iowa, 219, that
the taking of a new note and mortgage to secure an indebted-
ness evidenced by a prior note and secured by a prior mort-
gage, where the latter are surrendered and cancelled, does not
operate to discharge the lien of the first mortgage.
1871.] Burnham v. Muller. 455
Opinion of the Court.
It is true, that the taking of a debtor's note does not ex-
tinguish the original demand; and as the mortgage is only the
security for the debt, ordinarily it must stand until the debt
is discharged. Hence the general principle is, that, to consti-
tute a second mortgage a bar to a first, there must be an ex-
press or implied release, or one arising out of a covenant not
to sue.
The statutes of the States of Xew York and Iowa upon the
subject of chattel mortgages are somewhat different from our
own. In the former State, a mortgage upon personal property
ceases to be valid, as against creditors in good faith, after the
[expiration of one year from the filing of the same, unless,
within thirty days preceding the expiration of the year, a copy
of the mortgage shall be re-filed with the clerk. In a con-
struction of this statute, in Lee v. Huntoon, 1 Hoffman's Ch.
R. 447, it was held that the mortgage would be void at the
expiration of the year, if the statute was not complied with.
In an examination of the statutes of Iowa, we can find no
provision as to when the mortgage shall cease to be valid as
against creditors.
Our statute provides that a mortgage of personal property,
if bona fide, shall be good and valid as against the rights and
interests of third persons, for a space of time not exceeding
two years from the date of record, if it shall provide that the
possession of the property shall remain with the mortgagor.
In Constant v. Matteson, 22 111. 546, there was a contest
amongst creditors for priority, in the distribution of a fund
produced by a sale of chattels, and as to the priority of the
liens of the several mortgagees. It was held that, if posses-
sion continue with the debtor after the expiration of the stip-
ulated time, such possession shall be considered fraudulent, as
against other creditors or mortgagees, and that, in such case,
lien? subsequently acquired exclude or postpone prior incum-
brances.
In Reed v. Eames, 19 111. 594, it was held that, if the mort-
gagee permit the property to remain in the possession of the
456 Buenham v. Mtjllek. [Sept. T.,
Opinion of the Court.
mortgagor after default in payment, this constitutes a fraud
per se, which can not be explained^.
The failure, then, of appellee to take possession of the prop-
erty on the 21st day of April, was a fraud. On the maturity
of the note and mortgage, the lien created by the latter ceased
as against creditors.
A chattel mortgage may be made so as to be valid for two
years, but where the parties fix the time for less than two
years, this must control as to when the lien shall cease to oper-
ate. When the mortgage is recorded, then creditors have no-
tice that the mortgagor has the right to the possession of the
property until the day specified.
If the mortgagee neglect to reduce the property to possession,
upon default of the mortgagor, or within a reasonable time
thereafter, to be determined by the situation of the parties, he
loses his lien as against the rights of third persons. As affect-
ing their interests and liens, the mortgage becomes a void in-
strument.
In this case, the neglect to take possession on the part of
the mortgagee, by operation of law, determined his lien, and
rendered the first mortgage inoperative as to the rights of
the execution creditor. The lien of the latter then attached,
and related back to the 20th day of April, when the officer
first had the execution in his hands.
The lien of the first mortgage had ceased, and the execution
had priority over the second mortgage:
The two mortgages must be regarded as separate and distinct
instruments. The one had ceased to be a lien, as against the
execution; the other, by virtue of which the property in con-
troversy is claimed, was a subsequent lien to the execution.
The judgment must be reversed and the cause remanded.
Judgment reversed.
1871.] St. L., J. & C. R. R. Co. v. Kilpatrick. 457
Syllabus.
St. Louis, Jacksonville & Chicago Railroad Co.
v.
Warren Kilpatrick.
Pleading — declaration against a railroad company for killing stock. In
(in action against a railroad company to recover the value of a horse killed
by the defendant's train of cars, it was averred in the declaration, which
contained but one count, that, on the 1st of December, 1867, the defendant
was possessed and had entire control of the St. Louis, Jacksonville & Chi-
cago railroad, a portion of which was then run and operated in said count)-.
It was then averred that, at the time aforesaid, it became and was the duty
of the defendant, its agents, employees and servants,carefull)' and skillfully
to run and operate said road in and through said county, and that said de-
fendant, by its employees, agents and servants, so carelessly, negligently
and unskillfully run and operated said road, in the pursuit of their duties
as such employees, etc., that, at the time and place aforesaid, they opened
the close in which a certain horse of plaintiff was confined, and carelessly
and negligently left the fence surrounding said close down, by reason of
which negligence and carelessness on the part of the defendant, its em-
ployees, etc., the horse aforesaid escaped from said close, the horse being
the property of the plaintiff, and of the value, etc., and at the time and
place aforesaid strayed and got on said railroad, and the defendant, by its
servants, etc. on the day aforesaid, so conducted and directed the locomo-
tive and train of defendant on said railroad, that the locomotive and train
aforesaid struck the horse, he being on said railroad by and through the
neglect of defendant in opening the close in which the horse was confined,
and leaving the fence down, concluding by alleging the killing of the
horse and prayer for damages. Upon a demurrer to the declaration that
it was insufficient because of the want of an allegation of time and place
when and where the injury was committed, it was held, such objection was
not tenable, as the acts complained of are referred to the 1st day of De-
cember, 1867, on which day- the^railroad Avas being operated by the em-
ployees of the defendant, and the place being distinctly averred to be. at
the county aforesaid.
Appeal from the Circuit Court of Tazewell county ; the
Hon. Charles Turner, Judge, presiding.
Mr. C. A. Roberts and Mr. N. W. Green, for the appel-
lant.
Messrs. Whitney & Foster, for the appellee.
458 St. L., J. & C. K. R. Co. v. Kilpatmck. [Sept. T.,
Opinion of the Court.
Mr. Justice Breese delivered the opinion of the Court :
This was an action on the case by appellee against appel-
lant, to recover the value of a horse killed by appellant'?
train of cars.
There was a demurrer to the declaration and judgment
thereon for the plaintiff, and damages assessed.
The declaration contains one count only, in which it is
averred that, on the 1st of December, 1867, the defendant -was
possessed and had entire control of the St. Louis, Jacksonville
& Chicago railroad, a portion of which was then run and
operated in said county. It then avers that, at the time afore-
said, it became and was the duty of the defendant, its agents,
employees and servants, carefully and skillfully to run and
operate said road in and through said county, and that said
defendants, by its employees, agents and servants, carelessly,
negligently and unskillfully run and operated said road, in the
pursuit of their duties as such employees, etc.; that, at the
time and place aforesaid, they opened the close in which a cer-
tain horse of plaintiff was confined, and carelessly and negli-
gently left the fence surrounding said close down, by reason
of which said negligence and carelessness on the part of the
defendant, its employees, etc., the horse aforesaid escaped from
said close, the horse being the property of the plaintiff, and
of the value, etc., and at the time and place aforesaid strayed
and got on said railroad, and the defendant, by its servants,
etc., on the day aforesaid, at the place aforesaid, so conducted
and directed the locomotive and train of defendant on said rail-
road, that the locomotive and train aforesaid struck the horse,
he being on said railroad by and through the neglect of de-
fendant in opening the close in which the horse was confined,
and leaving the fence down, and concludes by alleging the
killing of the horse, and prayer for damages.
The principal cause of demurrer appears to be the supposed
want of an allegation of time and place when and where the
injury was committed. We think a fair reading of the count
1871.] Harrison v. City of Chicago, etc. 459
Syllabus.
affords no room for this objection. All the acts complained
of are referred to the 1st day of December, 1867, on which
day the railroad was being operated by the employees of de-
fendant, and the place is distinctly averred to be at the county
aforesaid.
The duty of defendant being alleged, and a negligent per-
formance, by which loss happened to the plaintiff, a good
cause of action was shown, and the same being admitted by
the demurrer, nothing remained to the court but to assess the
damages, defendant having chosen to abide by the demurrer.
The judgment is affirmed.
Judgment affirmed.
Carter H. Harrison
V.
The City of Chicago,
and
James E. Tyler et ah
v.
Same.
Special assessment — of a new assessment. Upon an application for
judgment upon a new special assessment for the deficiency which the city
of Chicago failed to collect of a former assessment, where the only defect
in the original proceeding was in the printer's certificate of notice of ap-
plication to the council for confirmation, the ordinance under which it
was had being free from objection, it was held, the new assessment was
not void.
Appeals from the Superior Court of Cook county.
Messrs. Spafford, McDaid & Wilson, for the appellants.
Mr. M. F. Tully, for the appellee.
460 Bridenthal v. Davidson. [Sept. T.,
Syllabus.
'Per Curiam : This was a judgment rendered at the March
term, 1871, of the Superior Court, in favor of the city, upon
a special assessment warrant to make up the amount which
the city failed to collect of a former assessment.
The only defect in the former proceeding was in the print-
er's certificate of publication of notice of application to the
council for confirmation. It does not appear that the ordi-
nance in the former proceedings was void.
These cases, presenting the same state of facts in each, are
distinguishable from that of Workman v. City of Chicago, post,
463, and we are not prepared to hold that the new assessment
was void, as the case now stands.
But the collector was unauthorized to apply for judgment,
and for that reason the judgments will be reversed and the
causes remanded.
Judgments reversed.
James W. Bridenthal
V.
John Davidson.
Instruction — loluelher proper. In an action on a promissory note, the
defendant tiled a plea, verified by his oath, denying that he executed the
note. The plaintiff testified that he took the note to defendant, when the
latter said it was all right, and promised to pay it. This the defendant, in
Iiis testimony, denied, and also denied that lie ever signed the note or
authorized any one to sign it for him. There were no other witnesses in
the case: Held, it was not error to instruct the jury, for the defendant,
that, if the evidence was equally balanced, they should find for the defend-
ant. The instruction is not open to the objection, that it tend'ed to mislead
the jury into the belief that they were to find for the-tlefendant if an equal
number of witnesses testified on each side, as an equal balance of evidence
does not refer to the number of witnesses, but to the equal weight and
credit of testimony, whether written or otherwise.
1871.] Bridenthal v. Davidson. 461
Opinion of the Court.
Appeal from the Circuit Court of Henderson county; the
Hon. Arthur A. Smith, Judge, presiding.
Messrs. Stewart & Phelps, for the appellant.
Messrs. Glenn & Davidson, for the appellee.
Mr. Justice Walker delivered the opinion of the Court :
This was an action brought by appellant, in the Henderson
circuit court, against appellee and another, on a promissory
note. Service was had on both defendants, and default was
entered against Theodore Davidson for the want of a plea.
But appellee filed a plea, verified by affidavit, denying the ex-
ecution of the note.
A trial was had before the court and a jury, when a verdict
was rendered in favor of defendant. A motion for a new trial
was overruled and judgment entered on the verdict, and the
cause is brought to this court by appeal.
On the trial below, appellant swore that he went to see ap-
pellee, who admitted that he executed the note and directed
him to leave it at the bank in Monmouth, and he would pay
it. He says that appellee, at the time, took the note in his
hands, examined it and said it was "all right;" that appellant
did not see the note executed ; that it was given for cattle sold
the other defendant, who brought the note to him executed,
and he thus received it from him.
Appellee swore that he did not sign the note, or authorize
any one to sign it for him.^ He testifies to seeing appellant at
the time named by him, but denies that he saw the note, or
knew that his name was signed to it, or that he said it was
right, or ever promised to pay it; that he did not direct it to
be left at the bank, or know it was claimed he was liable, un-
til the suit was brought on the note.
There was no other evidence in the case.
It is insisted that the court below erred by instructing the
jury that, if the evidence was equally balanced, they should
462 Brtdenthal v. Davidson . [Sept. T.,
Opinion of the Court.
find for the defendant. We fail to see any error in this in-
struction.
A plaintiff, holding the affirmative of the issue, to recover,
must prove his claim by a preponderance of evidence.
The law does not presume the indebtedness of a defendant,
or his liability, but requires the plaintiff to prove it; and it
must be proved by a preponderance.
Where the evidence is equally balanced, nothing is proved;
nor is the instruction liable to the criticism placed upon it by
counsel. An equal balance of evidence, as all know, does not
refer to the number of witnesses, but to the equal weight and
credit of testimony, whether written or otherwise. It is such
as leaves the mind in that state that it can not determine
whether a fact exists ; it leaves it undetermined and incapable
of deciding one way or the other on the evidence presented,
and no one would say, when the jury are left in that state,
that the plaintiff, or person upon whom the onus rests, has
established his right to recover.
When appellee denied the execution of the note, by a plea
verified by oath, it then devolved upon appellant to prove that
it was executed, or appellee subsequently ratified its execution,
by a preponderance of evidence. Appellant swore that appel-
lee acknowledged its execution, and he positively denies hav-
ing done so, and both witnesses refer to the same conversation.
They seem to have had equal opportunities to be informed of
the facts about which they testified, and both are equally con-
fident in their statements.
In such a conflict, it was the duty of the jury, having seen
and heard the witnesses, to determine which was entitled to
the greater credit, or, if unable to do so, then to say whether
the evidence was not equally balanced.
We perceive no error in the instructions, nor can we say the
evidence preponderates in favor of appellant.
Seeing no error in the record, the judgment of the court
below must be affirmed.
Judgment affirmed.
1871.] Workman et ah v. City of Chicago, etc. 463
Svllabus.
Frank Workman et al.
V.
The City of Chicago,
and
Henry Potwtn
V.
The City of Chicago.
1. Assessment for improvements — when void. The levy of a tax by
assessment for improving streets, under an ordinance, is a statutory pro-
ceeding, and the terms of the law authorizing it must be strictly followed,
or the whole is void.
2. Second assessment — void, if grouping out of a void proceeding. A
second assessment, ordered to make up a deficiency in the sum first levied,
must conform to the statute, which prescribes that the original mode shall
be followed; but if the first be void, so will the second.
3. Proceedings de novo. The original error can not be cured by rep-
etit ion, but new proceedings must be had.
4. City ordinance— w7£eH void. A report of the board of public works
of the estimated cost of a proposed improvement, being a prerequisite to
the passage of an ordinance, an opinion of the board of the justice of a
former void assessment, will not sustain a new ordinance.
5. So, when an ordinance imposes duties upon the board of public works,
and entrusts to the discretion of the board matters left by law to the com-
mon council, such ordinance is void.
6. Thapoints in these cases are substantially the same and governed by
the same principles as decided in Foss v. City of Chicago, 56 111. 354; Union
Building Association v. City of Chicago, ante, p. 439, and other similar cases.
Appeal from the Superior Court of Cook county ; the Hon.
Joseph E. Gary, Judge, presiding.
Mr. Edward Koby, for the appellant.
Mr. M. F. Tuley, for the appellee.
464 Workman et al. v. City of Chicago, etc. [Sept. T.,
Opinion of the Court.
Mr. Justice McAllister delivered the opinion of the
Court :
These two cases arise out of the same proceedings, present
the same questions, and will, therefore, be determined as one
case.
Application was made at the March term, 1871, of the Su-
perior Court, by the city collector, for judgment upon a special
assessment warrant, to make up the amount which the city
failed to collect on an original assessment for curbing with
curb walls, grading, and paving with wooden blocks, West
Lake street, from the east line of the roadway of Eeuben
street to the east line of the roadway of Western Avenue, in
the city of Chicago.
It appears from the record, and is not controverted by the
corporation counsel, that the original assessment was illegal
and void, and it Avas not a case where all the steps were regu-
lar and valid down to the completion of the assessment roll
for confirmation, but the ordinance and all anterior and sub-
sequent proceedings were illegal and void. The report and
recommendation of the board of public works, which was the
first step in the proceeding, and ordinance accompanying it,
both contained the clauses which vested the board with a dis-
cretion, held, in Foss v. City of Chicago, 56 111. 354, to be illegal,
and to render both void.
In the case of Union Building Association v. City of Chicago}
ante, p. 439, we had occasion to consider most of the ques-
tions involved in this case, though that case was dissimilar in
some of its aspects. We there held that, where the original
proceedings were illegal and void, they were to be so regarded
as to all parties not estopped by their acts from questioning
their validity; that, although void, there might still be anew
assessment under the 36th section of chap. 7 (Gary's Laws, 75),
but such new assessment must be a de novo proceeding, and
made, as near as may be, in the same manner as is prescribed
1871.] Workman et al. v. City of Chicago, etc. 465
Opinion of the Court.
for making the first or original assessments under the amend-
atory acts of 1865 and 1867.
We were reduced to the alternative of holding that the new
assessment must be so made, or of denying the right altogether,
and this conclusion, it was considered, is not inconsistent
with the judgment in the case of City of Chicago v. Ward, 36
111. 9, because, in that case, the court expressly held to the
same doctrine. "It will be observed," said the court, "that
this section requires this second assessment to be made, as near
as may be, in the manner prescribed for the first assessment."
But the question, as to how that was to be, was not, and could
not have been, involved in that case, as it was decided in 1864,
before the amendatory acts referred to were either of them
passed.
In making the new assessment, in this case, both the board
of public works and the council treated the original proceed-
ings as valid, not only as to the city, but in respect to non-
paying property owners who were not estopped, by their acts,
from questioning their validity.
In their report to the council for the new assessment, the
board of public works state the matter thus :
" The commissioners of the board of public works respect-
fully represent to your honorable body that, at the March term
held by the Superior Court of Chicago, in the year 1870, in
the city of Chicago, application was made to said court, by the
said city, for judgment against various lots and parcels of land
for the amounts of assessments and costs respectively due
thereon by virtue of the special assessment warrant issued for
the curbing with curb walls, grading and paving with wooden
blocks, West Lake street, from the east line of the roadway of
Reuben street to the east line of the roadway of Western
Avenue, and that the city of Chicago failed to obtain judgment
for, and failed to collect a portion of, said special assessment,
amounting to $56,166.76.
30— 61st III.
466 Workman et al. v. City of Chicago, etc. [Sept. T.,
Opinion of the Court.
"As required by the revised charter, the commissioners of
the board of public works ask that a new assessment be or-
dered to be levied to make up said deficiency.
"The board of public works, in their report, recommending
to your honorable body that said improvement be made, esti-
mated its total cost at $119,129.02, and of this amount it
was ordered by the common council that the assessment re-
ferred to above (as that on which judgment was applied for), be
levied for the sum of $102,953.12, and that the public ben-
efits resulting to the city of Chicago from said improvement,
and amounting to the sum of $16,175.09, be paid out of the
general fund.
"It is the opinion of the board of public works that, of the
above total estimate of expense, the amount of said assessment
would be properly chargeable to real estate specially benefited
by the said improvement, and that the sum ordered to be paid
therefor from the general fund, was a fair and proper propor-
tion of its total cost to be paid otherwise than by an assess-
ment on property specially benefited thereby, as determined
by the consideration of the special benefits accruing to real
estate specially benefited by said improvement, and the gen-
eral benefits resulting therefrom to the city of Chicago; and
that, accordingly, said deficiency may be properly wholly
chargeable to the delinquent property of the real estate specially
benefited by said improvement."
This report, it will be perceived, contains no recommenda-
tion of the making of the improvement or statement of the
expense thereof, except as the commissioners say, that, in their
report (that is, their former original report,) recommending
that said improvement be made, they estimated its total cost
at §11.9,129.02.
The former proceedings were" void in limine. The very re-
port referred to as recommending the improvement originally,
contained the provision for vesting the board with the illegal
1871.] Workman et al. v. City of Chicago, etc. 467
Opinion of the Court.
discretion which was held in the Foss case to vitiate, and was
accompanied with the vitiated ordinance.
The commissioners were acting without jurisdiction. Their
supposed estimate of the expense of the improvement and
statement of it in such void proceedings, are of no more val-
idity than if made by three justices of the peace.
The statutes of March, 1867, amendatory of the city char-
ter and prescribing the mode of ordering improvements, and
levying special assessments therefor, require, "that the board
shall proceed to investigate the same, and if they shall deter-
mine that such improvement is necessary and proper, they shall
report the same to the common council, accompanied with a
statement of the expense thereof" etc. "Having reported on such
application, and recommending that the improvement be made,
or disapproving of the doing it, as is provided for in the above
mentioned act, the common council may then, in either case,
order the doing of such work or the making of such public
improvement, after having first obtained from said board an es-
timate of the expense thereof and in such order specify what
amount of said estimated expense shall be assessed upon the prop-
erty deemed specially benefited, and what amount shall be charge-
able to and be paid in of the proceeds of the general fund, or out
of the proceeds of any general tax authorized to be levied by
said city."
Whatever may be said as to the prerequisites of a valid
order by the council for an improvement to be paid for by
special assessments, it is undeniable that, without a report of
the commissioners, either recommending or disapproving" of
the proposed work, or without a statement made by them to
the council of an estimate of the expense of such work, no
valid order for such improvement to be paid for by special
assessments can be made ; nor can a valid assessment be made
upon an ordinance which fails to specify Avhat amount of the
estimated expense shall be assessed upon the property deemed
specially benefited, and what amount chargeable upon the
general fund.
468 Workman et ai v. City of Chicago, etc. [Sept. T.,
Opinion of the Conn.
Now, what is the exact posture of this matter?
The only report made by the commissioners, upon which
any order of the council has been made, was one recommend-
ing the work, in the original proceedings, and the only state-
ment of an estimate of the expense of the work was in that
report; but that report, and all proceedings connected with it,
were utterly void.
The only order of the council purporting to specify what
amount of the estimated expense should be chargeable upon
real estate and what upon the general fund, and made indis-
pensable by the statute, is the original ordinance, conceded by
appellee's counsel to have been utterly void.
Instead of such an order by the council specifying these
respective amounts, we find only the opinion of the board of
public works expressed in the last clause of their report for
the new assessment, that the amount ordered to be charged
upon the real estate, and that upon the general fund, by the
original ordinance for the improvement, was a fair and proper
proportion of its total cost; but the ordinance in the new pro-
ceeding says nothing about it. That simply orders the com-
missioners to make a new assessment for the sum of $06,-
166.76, said assessment being for the amount which the city
failed to collect upon a special assessment confirmed by the
council on the 23d day of August, 1869, for the curbing, etc.
The new assessment must be made, as near as may be, in
the same manner prescribed for a first assessment.
There was, literally, no attempt, so far as we can discover,
to make this new assessment, as nearly as was practicable, in
the same manner as is prescribed for making a first assessment.
There was no disclosure in the proceedings respecting the
state of the improvement, whether completed or uncompleted,
or whether payments had been made or amounts collected un-
der the original, except by implication. If the work had not
been completed, then certainly there should have been a re-
port by the board as in an original case, containing an esti-
mate of the expense, and a statement of the amounts paid, on
1871.] Workman et al. v. City of Chicago, etc. 469
Opinion of the Court.
the original. If it had been completed when these new pro-
ceedings were commenced, that fact should have been reported,
with a statement of the actual cost of the payments made, and
the assessment ordered for the balance only, as was held in
Union Building Association v. City of Chicago, supra.
In such cases, where the proceeding must be varied accord-
ing to circumstances, it will suffice if made, as nearly as may
be, in the manner prescribed for the first assessment. But it
is a far different matter when the manner prescribed for a first
assessment is disregarded altogether, where a new assessment
is levied, without any valid estimate of the expense of the
improvement, without any valid ordinance specifying what
amount shall be assessed upon the real estate deemed specially
benefited, and what paid out of the general fund, and with a
substitution of the opinion of the board in the place of such
ordinance.
AVe are of the opinion that this new assessment was not
levied in conformity with the requirements of the statute.
The collector, as has been repeatedly held, had no authority
to apply for judgment; the judgments will therefore be re-
versed and the causes remanded.
Judgments reversed.*
'"The four following cases. George K. Adams v. City of Chicago, Grant Goodrich v. Same,
Adolph Loeb v. Same, and Elias It. Bowen v. Same, appeals from the Superior Court of
Cook county, are essentially like the above case of Workman et al. v. The City of Chicago,
and are decided in the same way. The case of A. Bulkley v. The City of Chicago, also an
appeal from the Superior Court of Cook county, presents the same questions determined
in the cases of Union Building Association v. The City of Chicago, and Workman et ul. x.
The City of Chicago, and is decided in .accordance with those cases.
470 Gregory v. Healy et al. [Sept. T.,
Syllabus. Opinion of the Court.
Charles A. Gregory
V.
Patrick C. Healy et al.
1. Judgment — report of referee— jurisdiction. After issue, the parties
to a suit by stipulation referred the cause to a referee to hear the evidence
and try the case, and provided therein that judgment should be entered
on his finding as on the finding of the court. The court heard no evidence,
and judgment was rendered upon the mere report of the referee of a gross
sum. The referee was not sworn, nor were the witnesses : Held, that as
there Avas no proper submission according to the statute, the court had no
jurisdiction to render judgment upon the report.
Appeal from the Superior Court of Cook county ; the Hon.
Joseph E. Gary, Judge, presiding.
Messrs. King, Scott & Payson, for the appellant.
Messrs. Miller, Van Arman & Lewis, for the appellees.
Per Curiam : The record shows that this suit was insti-
tuted in the Superior Court, and after issue joined, that the
parties stipulated in writing to refer the same to B. D. Magru-
der, " to hear the evidence and try and determine the cause,
and that judgment be entered on his finding as on the finding
of the court."
Either party was to have the right to move for a new trial,
or to appeal, as in ordinary cases.
The judgment recites that Magruder found the issues for
the plaintiffs, and assessed their damages against the defend-
ant, at a certain sum, and the court thereupon rendered judg-
ment.
The record shows conclusively that the court heard no evi-
dence; that there was no trial in court, and that the judgment
was rendered upon the mere report of a gross amount by the
referee.
1871.] Gregory v. Healy et a£ 471
Opinion of the Court.
A paper, having the form of a bill of exceptions, is signed
by the judge, and countersigned by Magruder, to give it val-
idity.
It is, however, absolutely certain, from the entire record,
that there was no trial by the court, and no evidence heard;
and we can not review testimony taken in such manner. The
referee was not even sworn, nor were the witnesses. The sol-
emnities under which testimony should be taken were entirely
disregarded.
There was no proper submission to this referee, which would
authorize the court to enter up judgment upon his report.
The court had no jurisdiction to render the judgment.
There was no submission, according to the statute. That re-
quires a submission to three persons, to be named in the order.
The court could only render a judgment when the submission
is in pursuance of the statute. In other cases, the parties must
be left to their remedies at common law. Low v. Nolte, 15
111. 368.
There was no confession of judgment, but a mere pretense
of a trial, in violation of all the rules of law.
We can not review evidence taken as this was, and an affirm-
ance of the judgment, under the circumstances, would be
wrong. It is, therefore, reversed and the cause remanded.
Judgment reversed.
'/
472 Merrick v. Peru Coal Co. [Sept. T.,
Syllabus.
George G. Merrick
V.
The Peru Coal Company.
1. Coupon ation — may contract with its members. There is no rule of
law which prohibits a shareholder from dealing with the company of
which he is a member, or from suing or being sued b}r it. The president
of a private corporation has the right, with bis own funds, to purchase
notes and drafts of the corporation, and when he does so, he will succeed
to all the rights of the prior holders; or he will have the right, when he
takes up such indebtedness with his own means, to maintain an action
against the corporation for money paid, laid out and expended for its use.
2. Same — advances and loans to, by officer. And if the president of a
private corporation advances it money to enable it to carry on its business
or make purchases, he can sue it and recover for money loaned.
3. A shareholder or officer of a private corporation has the right to
deal with the company in the same manner as strangers, and when he
does so, such party acquires the same rights and incurs the same liability
as in the case of a contract with a stranger.
4. Same — advances by member — presumption. Where two brothers, con-
templating the formation of a private corporation, purchased certain coal
lands and mining rights, and agreed when the purchase was made that they
were to have an equal interest in the stock of the company, and to make
equal payments on account of the purchase and for carrying on the busi-
ness; and after the incorporation, one of them advanced various sums of
money in payment of drafts of the company and in taking up its indebted-
ness, for which he was credited upon the books of the company : Held,
in a suit against the company to recover for such advances, that the agree-
ment was intended only to bind each brother to advance equal amounts as
loans, and not as donations; and even if this were not so, that the company
could not set up such agreement in defense, as it was no party to it. The
court could only look to the legal liabilities of the compaii}'.
5. If by the recovery for advances the plaintiff should obtain an
equitable advantage over his brother by getting more than a fair share of
the corporate property, under the agreement to contribute and share
equally in the stock and dividends of the company, the brother in equity
might have the rights and burdens of each equalized.
6. Corporation — compensation for services of officer. Unless provision
is made for compensation for the services of the president of a corporation
in the by-laws or resolutions of the company, sucli officer will have no
riffht to recover for services.
1871.] Merrick v. Peru Coal Co. 473
Opinion of the Court.
7. Admission. When an admission involves a conclusion as to the
party's legal rights, and does not relate to a particular fact, and where it
is manifest that it was made in ignorauce of his legal rights, it is entitled
to but little weight.
Appeal from the Circuit Court of LaSalle county; the Hon.
Edwin S. Leland, Judge, presiding.
Mr. T. Lyle Dickey and Mr. John C. Champlin, for the
appellant.
Mr. Samuel W. Fuller and Mr. G. S. Eldridge, for the
appellee.
Mr. Justice Walker delivered the opinion of the Court:
This was an action of debt, brought by appellant, in the
LaSalle circuit court, against appellee, at the October term,
1869. The declaration contained several special and the com-
mon counts. *
There was filed a plea of nil debet, payment, set off, and a
plea denying the execution of the notes and bills of exchange
declared on, verified by affidavit.
At the June term, 1871, a jury was waived and the cause
was submitted to the court for trial by consent of the parties.
After hearing the evidence, the court found the issues on all
of the pleas except set off, which had been withdrawn, for the
defendant. A motion for a new trial was entered by plaintiff,
but was overruled by the court.
Appellant introduced, iifter proving the signature, a note
of appellee, dated October 2, 1867, signed C. C. Merrick,
president of the company, payable in six months, for $3290,
payable to the Michigan Car Company, and indorsed to appel-
lant by the payee ; also a note of appellee dated the 7th of
October, 1868, for $2239.43, payable at 60 days to the Ohio
Falls Car and Locomotive Company, signed by Geo. G. Merrick,
president. A note of the same kind, same amount and date,
payable 90 days after date, with assignments and a receipt of
474 Merrick v. Peru Coal Co. [Sept, T.,
Opinion of the Court.
payment of both of these notes by appellant ; also two drafts
drawn by C. C. Merrick, president, in favor of the Michigan
Car Company, one dated July 1, 1867, for §4920, and the other
dated January 4, 1868, for $5166, both assigned in blank by
the payee.
Appellant testified that he took up the notes to the Ohio
Falls Car Company, each for $2239.43, with his own private
funds, one December 10, 1868, and the other January 9, 1869 ;
that he took up the two drafts in the same manner, also other
items of account amounting in the aggregate to $30,580.84,
after deducting all credits; that these sums were advanced
from his own moneys, and the same were paid either to, or for and
on account of the company, with the knowledge and appro-
bation of the president thereof; that in December, 1868, and
January, 1869, the company purchased cars, and its paper was
given therefor, which had matured, and the company having
no funds, and appellant being the president, took up the paper
with his own means, and caused the amount to be entered to
his credit on the books of the company.
Appellant further produced vouchers for the items of his
account, and swore to their correctness; and appellee's coun-
sel says that it was not denied, so far as he remembers, that
appellant had made most of the payments and performed most
of the labor for which he claimed to recover of appellee, but
he says the sole question was, whether the payments were
made and the labor performed on the credit of the company,
and for which it became liable as his debtor, or whether they
were made in pursuance of the original agreement between
him and his brother for the purchase and operation of the
property of the company.
It appears that, in December, 1865, appellant and his brother
Charles purchased of T. D. Brewster and E. Higgins certain
coal land and mining rights in the city of Peru, in this State,
which had belonged to an insolvent mining company known
as the Peru Coal Mining Company, which was then in the
hands of, and operated by, Brewster & Higgins. and who claimed
1871.] Merrick v. Peru Coal Co. 475
Opinion of the Court.
to be the principal owners thereof. The terms of the purchase
were, that the Merricks were to give $30,600, and to form a
new corporation under the general laws of the State, with a
capital stock of $1,000,000, and Brewster & Higgins were to
liave 49-100 of the full paid stock, thus leaving the Merricks
owners of a small majority of the stock, giving them the con-
trol in the management of the affairs of the company.
The $30,600 was paid pursuant to the agreement, a new
corporation was formed in February, 1866, and the stock is-
sued to the parties pursuant to the agreement. The coal lands
were conveyed to them, and not to the company, and were so
held by them for more than a year, when they were conveyed
to the new company.
The Merricks seem to have taken into their hands the full
management of the affairs of the company. Charles was
elected president of the company, and held the office for two
years, when he was succeeded by appellant. He occupied the
position until February, 1869, when Charles was re-elected to
the place. They, with Brewster, were the directors of the
company.
At the time of the sale, Brewster & Higgins owned the
large, portion of the stock of the old company, but there were
quite a number of shares held by other persons. This out-
standing stock, it was subsequently agreed by the Merricks,
should be purchased in by Brewster on their account, as far
as it could be conveniently done ; and the greater portion was
thus obtained.
It was understood and agreed between appellant and Charles,
when the purchase was made, that they were to have an equal
interest in the stock of the company, and to make equal pay-
ments on account of the property purchased, and that they
would advance the necessary means in equal parts for carrying
on the business of the company; and they seem to have had
the same understanding in buying the outside stock, which
was purchased for them in equal amounts.
476 Merrick r. Pebc Coal 06. [Sept. TM
Opinion i^' tin- Court
On the 8th of April, lSt>7, a meeting was held, and the
stockholders aooepted a special charter, granted by the legisla-
ture, and, in pursuance of its provisions, the capital stock waa
then increased to $500,000. The stock was issued for that
amount Charles previously held 482 shares, appellant 182
shares, Brewster 32 shares, and I were unrepresented when
the increase of the stock was made. On the 30th of Decem-
ber, 1867, Charles held 2420, appellant 2420, Brewster 108,
Kales 50, and 2 shares were not issued, making in all 5000
shares. The new stock was issued on the old, four new shares
to each one of the old ; no money was paid therefor.
An arrangement was entered into between Charles and ap-
pellant, as we have seen, before the purchase was made in the
first instance, that, as the corporation would be compelled to
have money and credit to develop and carry on the enterprise,
they were each to advance to the corporation the money tor
that purpose, and as between themselves they would equalize
the advances thus made. The meaning- and effect of this ar-
rangement gives rise to this entire controversy. Appellee
oontends that, under it, neither of the brothers could make
the company liable, nor could it become the debtor of either
of them. On the other hand, appellant contends that, as the
corporation would be compelled to borrow money to a consid-
erable extent, they would advance or loan to it the necessary
funds in equal amounts, and as between themselves equalize
that amount if one of them should advance more than the
other.
A.S we understand the case, this arrangement was entered
into when they owned but a small majority of the stock, and
\v\\c\\ others, to whom they were under neither any pecuniary
nor moral obligation, held almost one-half of the stock. It is
true that they subsequently became the owners of all but 8
trilling amount, of the stock of the company, but such was not
the case when tin; arrangement was consummated. When thifij
together with other circumstances which surround this agree-
ment, arc considered, they repel, in the strongest manner, the
71.]
Opinion of
that the parties intended to advance such h
moiitv t<> a corj rtock
of which belonged to others, and th-. one-ball
Ihe benefits derived therefrom in t': rty and
profit- to otl It lookfl to 08 i ni-
bble that such could have been the design. M
ao disregardful of th
brothers cl en make the
Inahle, i tural thai they would
be willing to loan means I >mpany from any surplus!
had, look to ;: f nent, and thus w their into
in the |>r .ml profits of the company, I: inch was the
irii. ami it i> but hie to belie*
reasonable and fully sufficient to induce inch action on their
nind. Had they, in the beginning, and when th<
rangement was < nt< red into, tire
that it would be a matter of indifler-
. on advancing money by either of them to the company,
whether it should be charged to the company, half
Ihns advanced charged to the other, as mode the re-
sult to their interest would havi ime. In such a
its would li:r .1 i quail h oC
them, and other parties could not have shared in t-
F . the opinion that the ami
nnnt must ha n intend o hind each to advi
equal amounts to the corporation as lotus, and not as dona-
|
The evidence d< - sbQ i that any other or different
rangement u wards made, when they had obtained all
but k, and we will not presume that
ihe\ I that the advances then mad
Si rent terms.
But even if such is not the purport <<( the agreement) end
laimed by appell Mow that such an
this act:
478 Merrick v. Peru Coal Co. [Sept. T.,
Opinion of the Court.
Here is a corporate body, having a legal existence, endowed
with ample powers to enter into contracts and agreements, of
suing and being sued, which has given notes and drafts to per-
sons in nowise connected with it or its organization, and has
given notes and drafts which were undeniably binding on it in
law — such instruments as the payees and drawees could, be-
yond all doubt, have sued upon and recovered after their ma-
turity. So could their assignees. And it may be asked why
appellant could not recover, when he, in his own individual
right, with his private means, purchased these instruments, so
far as we can see, in good faith, or, at all events, paid with his
individual funds for the use and benefit of the company. It
Avill not be said that he could not recover because he was a
stockholder and officer of the company, as both have the right
to deal with the company in the same manner as strangers
may; and when they do so, each party acquires the same rights
and incurs the same liability as would strangers.
There is no rule of law which prohibits a shareholder from
dealing with the company, or from suing or being sued by it.
It then follows that appellant, notwithstanding he was the
president of the company, had the right, writh his own funds,
to purchase these notes and drafts, and when he did so he suc-
ceeded to all of the rights of the holders. Or he, upon taking
up, with his own means, such indebtedness, had the right to
maintain an action for money paid, laid out and expended for
the use of appellee.
It is equally true, that^if he advanced money to the com-
pany to enable it to carry on its business, he can sue it and
recover for money loaned. Having the right to deal with the
company, he had the power to loan it money and to look to it
for payment. Such is the well recognized law, and it must
control unless prevented by the agreement of C. C. Merrick
and appellant, entered into when they first purchased the prop-
erty.
Whatever may be the rights of these parties, as individuals
or as partners, in forming the company as they did, we are
1871.] Merrick v. Peru Coal Co. 479
Opinion of the Court.
^ Holly unable to see that .appellee can invoke the private
agreement of the Merricks to release it from liabilities it has
legally incurred and has never discharged. The company was
not a party to that agreement, and has no more concern with
•It than if it had been entered into by persons who neither held
fctock in, nor were officers of the company.
We can alone look to the legal liabilities of the company,
and not to the equities that may exist between appellant and
h'.s brother. The corporation, according to the usual course
of business, incurred the liability to pay this indebtedness, and
has done no act to discharge it from that burthen. It has no
right to insist upon the performance of an agreement entered
into by two of the shareholders in reference to the terms and
conditions that they should purchase and hold stock and loan
money to the company. That was their private affair, which
in nowise concerned the company.
We must not forget that the company is a separate legal en-
tity existing independently of the Merricks, although they
may have owned much the greater portion of the stock. It is
fully illustrated, when appellant ceased to be the president
and a director in the company. Although he owned nearly
one-half of the stock, he was as impotent to control its acts
as a stranger owning none of its stock.
Appellant and his brother, had they owned all of the stock,
would not have been the company, but would have represented
its stock, and would have held the power, by virtue thereof,
to designate the persons who should exercise the franchises and
powers of the company. They might, no doubt, by the adop-
tion of by-laws, have conferred the power on themselves neces-
sary for its corporate action, but they could not exercise them
merely because they were stockholders.
If, by a recovery of a judgment for his advances, appellant
would obtain an equitable advantage of Charles by obtaining
more than a fair share of the corporate property, under their
agreement that they should contribute equally and share
equally in the stock and dividends of the company, then he
480 Merrick v. Peru Coal Co. [Sept. T.,
Opinion of the Court.
has,no doubt,the right in equity to have their agreement strictlv
performed, and their rights and burthens equalized. But
those rights can not be adjusted in this proceeding, nor can
appellee call upon them to adjust those rights in a suit at law.
It is urged that appellant repeatedly said that the company
owed him nothing, or that it owed nothing. From the whole
of the evidence in the case, we are of the opinion that these
declarations were all made when he supposed that he was com-
pelled to look to his brother for the sum he had advanced in
excess of that contributed by him, and under the supposition
that he had no power to recover from the company. It is not
pretended that he ever admitted that the money advanced by
him to and for the company had been paid to him. It is man-
ifest that he made these statements and admissions in ignor-
ance of his legal rights, and, from the evidence, Ave see nothing
that should be held to conclude him from asserting them in
this suit.
As to the claim for salary whilst acting as president of the
company, we can see no right of recovery. It nowhere appears
in evidence that there was any by-law or resolution of the
company providing compensation for such services.
In the case of Am. Cent. R. R. Co. v. Miles, 52 111. 174, we
held that in the absence of such a by-law or resolution, such
compensation could not be recovered for services rendered by a
director of a railway company. In principle, no distinction
is perceived between the two cases.
All the evidence considered, we are of the opinion that the
court below erred in finding the issues for, and rendering
judgment in favor of appellee, and the judgment is reversed
and the cause remanded.
Judgment reversed.
1871.] Cramer et al. v. Willetts. 481
Syllabus. Opinion of the Court.
Richard S. Cramer et al.
v.
Wells Willetts.
1. Payment — agreement as to credits. Where a note was indorsed oy
the payee after its maturity, any amount, either in money or property,
which by agreement between the payee and the maker, or by direction of
the maker, was received by the payee before the transfer, to be applied
on the note, should be allowed as a discharge pro tanto on bill by the in-
dorsee to foreclose a mortgage securing the note.
Appeal from the Circuit Court of Mercer county ; the Hon.
Arthur A. Smith, Judge, presiding.
Messrs. Bassett & Connell, for the appellants.
Messrs. Pepper & Wilson, for the appellee.
Per Curiam : The decree rendered in this case is ineqi ta-
ble, and must be reversed.
The note secured by the mortgage was executed by appel-
lant to one Mannon, who assigned it to appellee in 1869, and
long after its maturity. Any amount, therefore, either in
money or property, which, by agreement between the creditor
and debtor, or by direction of the debtor, was received by the
creditor, to be applied on this note, was pro tanto a discharge
of it.
Cramer testified that he gave positive directions that §50,
which he paid and which Mannon acknowledged the recep-
tion of, should be placed as a credit on the note. He and
Mannon both testified that $72 worth of hay, by agreement
between them, was a proper credit.
The debtor testified that numerous other articles received
by the creditor, after the maturity of the note, and prior to its
assignment, were, by agreement, to be oredited upon it.
Mannon makes a very equivocal denial.
31— 61st III.
482 Commercial Ins. Go. v. Treasury Bank. [Sept. T.,
Syllabus.
The creditor had no right to disregard this agreement, and
the appropriation of the $50, without the consent of the debtor.
Did he assent to any other application? We think not.
The first item of Mannon's account is, "due on settlement,
$51.14," dated September 18, 1868, subsequent to the delivery
to him of the hay and other articles. He merely stated that
tnis was correct, but there is no evidence whatever that this
settlement included the articles for which credit is claimed. It
is not a fair and legitimate inference that they were included,
in the absence of any proof. The debtor and creditor had made
an appropriation, and, after the agreement between them, the
debtor had a right to suppose that the property had been cred-
ited on the note, and it would be most unnatural that he should
produce an account of the same property for settlement in
1868, when it had been delivered in the years 1864, 1865 and
1866.
The decree is reversed and the cause remanded.
Decree reversed.
Commercial Insurance Company
Treasury Bank.
1. Insurance policy — indorsement to pass title. The plaintiff brought
suit on a policy of insurance, payable to third parties who were the
assured, upon the back of which was indorsed: "Loss, if any, under
this policy is hereby made payable to the Tieasury Bank of Chicago. «s
its interest may appear." Signed, " J. Farmer, Sec'y." The declaration
set out the policy in hcec verba, without any averment that the indorse-
ment was made by the company, or that the assured had requested or
consented to it: Held, that the declaration failed to show any right of
action in the bank, and was bad on motion in arrest of judgment.
1871.] Commercial Ins. Co. v. Treasury Bank. 483
Opinion of the Court.
2. Same — assignment. In order to give a right of action on a policy
of insurance for a loss, to an assignee in his name, the insurance company
and the assured must act together in effecting an indorsement.
3. Pleading — defects cured by verdict If a cause of action be stated,
though ambiguously and defectively, a general verdict will cure the de-
fect; but where there is no statement of any cause of action or right in
the plaintiff to maintain the suit, the omission will not be cured by the
verdict. Nothing will be presumed after verdict but what is expressly
stated in the declaration, or is necessarily implied from the facts which
are stated.
4. Pleading and evidence. The plaintiff need not prove more than
is expressly stated in his declaration, or is necessarily implied from those
facts which are stated.
5. Aiirest of judgment. Where a declaration fails entirely to show
any right in the plaintiff to maintain the action, as where the suit is upon
an instrument payable to a third party, and no indorsement or transfer is
averred, a motion in arrest of judgment should prevail.
Appeal from the Superior Court of Chicago; the Hon.
John G. Rogers, Judge, presiding.
Messrs. Dent & Black, for the appellant.
Messrs. Waite & Clarke, for the appellee.
Mr. Justice Thornton delivered the opinion of the Court :
The declaration sets out, in hceo verba, a copy of a policy
of insurance payable to Boyington, Cash & Wilder, on the
back of which is the following indorsement: "Loss, if any,
under this policy j is hereby made payable to the Treasury
Bank of Chicago, as its interest may appear. Nov. 28, 1866,
J. Farmer, Sec'y."
There is no averment in the declaration that this indorse-
ment was made by the company, or that the assured requested
it, or consented to it.
Objection was made to the introduction of the policy, when
offered, and a motion in arrest of judgment was also made.
The pleader has merely averred, in the declaration, that the
insurance company executed to Boyington, Cash & Wilder a
484 Commercial Ins. Co. v. Treasury Bank. [Sept. T.,
Opinion of the Court.
certain policy in writing, of the words and figures following, —
and then follows the policy, dated August 10, 1866. On the
back is the indorsement before referred to, of a subsequent
date, but the declaration contains no averment whatever in
reference to the indorsement.
It was essential to this action that the Treasury Bank should
have a right to the policy. This it can not have, without the
assent of the company and the assured. They must act in
effecting the indorsement. Without some allegation in the
pleading, the mere indorsement proves nothing. No proof
would be required in regard to it.
The averment that the following policy was executed to the
party originally assured, does not, in the remotest degree, con-
nect the bank with the policy. This averment has reference
solely to the original policy, and not to the indorsement; be-
cause the execution of the latter, so far as the pleadings show,
was long subsequent to the execution of the former.
The mere indorsement, then, without apt averments to show
that it was a part of the policy, and the manner in which it
became such, conferred no right upon the bank to maintain
the suit.
Is the omission to state the cause of action cured by ver-
dict?
The rule is, that, if the plaintiff totally omit to state his
title or cause of action, it need not be proved at the trial, and
therefore there is no room for presumption. Rushton v. As-
'penwall, Doug. 679.
This is not the case of a title defectively set out, which will
be aided by verdict, but the total omission of any title in the
plaintiff. No implication can arise from any allegation of
right in the plaintiff, for there is none. Hence nothing is
presumed after verdict, but what is expressly stated in the
declaration, or necessarily implied from the facts stated. 2
Tidd Pr. 919.
Sergeant Williams, in the note to Strund v. Hogg, 1 A\ in.
Saund. 228 c, says: " The plaintiff need not prove more than
1871.] Doan v. Sibbit. 485
Syllabus.
what is expressly stated in his declaration, or is necessarily
implied from those facts which are stated."
See also Weston v. Mason, 3 Burr. 1725.
The doctrine is fully settled by all the authorities, that, if
a cause of action be stated, though ambiguously and defect-
ively, a general verdict will cure such ambiguity and defect.
The presumption then will be, that all the proof necessary to
complete the cause of action was made at the trial.
But if, as in this case, there is no statement of any cause of
action, no averment that the loss was payable to the plaintiff,
with the consent of the company, the omission is not cured by
verdict.
The motion in arrest should have prevailed, and the judg-
ment is reversed and the cause remanded.
Judgment reversed.
William V. Doan
V.
John W. Sibbit.
1. Certiorari under the statute. Where a petition for a certiorari
shows no reason why the party could not have taken an appeal from the
judgment of a justice of the peace, it is not error to dismiss the certiorari
on motion.
Appeal from the Circuit Court of Iroquois county ; the
Hon. Charles H. Wood, Judge, presiding.
Messrs. Blades & Kay, for the appellant.
Messrs. Roff, Doyle & McCullough, for the appellee.
486 Gilkerson et al. v. Brown et al. [Sept. T.,
S}rllabus. Statement of the case.
Per Curiam: The certiorari in this case was properly dis-
missed. The petition shows no reason why an appeal could
not have been taken. It is unlike the case of McNerney v.
Neivberry, 37 111. 91, cited by appellant. In that case the de-
fendant, who had been summoned as a garnishee, was dis-
charged by the justice, who afterwards, without further notice,
rendered judgment against him.
In this case the petitioner, who had also been summoned as
a garnishee, was not discharged, but the magistrate rendered
what he called a conditional judgment against him, to be set
aside in a certain contingency, and the petitioner gave himself
no further trouble. This was a degree of negligence fatal to
his petition.
The judgment is affirmed.
Judgment affirmed.
Thomas Gilkerson et al.
v.
Alonzo Brown et al.
1. Taxation — leasehold interest — warehouse on railroad right of way.
Grain warehouses built by private individuals upon lands leased by the
Illinois Central Railroad Company, along and on the company's right of
way, intended for the private benefit of the lessees, who have the right to
remove the same before the termination of their leases, are not the
property of the railroad company, but personal property of the lessees,
and taxable as other personal property.
Appeal from the Circuit Court of Cook county; the Hon.
"William W. Farwell, Judge, presiding.
This was a bill for an injunction, filed in the circuit court
of Will county, and removed by change of venue to the cir-
cuit court of Cook county. The bill sought to enjoin the
1871.] Gilkerson et ah v. Brown d al. 487
Opinion of the Court.
collection of the State, county, school and town taxes levied
upon two grain warehouses, and machinery to operate the
same. The court below, on motion, dissolved the injunction
and dismissed the bill, and allowed $100 damages as costs
and attorney's fees.
Mr. James N. Orr, for the appellants.
Messrs. Hile & Dibbele, for the appellees.
Mr. Justice Sheldon delivered the opinion of the Court :
If the grain warehouses, upon which the taxes in question
were assessed by a town assessor, belonged to the Illinois
Central Railroad Company, they were exempt from these taxes
by the terms of its charter. As the buildings stood upon land
leased from the company, and being a part of its roadway, it
is insisted that they constituted a part of the same, and were
subject to taxation as property of the company, notwithstand-
ing they were, by the express terms of the lease, removable
from the leased premises by the lessees, at any time before the
termination of the lease. Such is claimed to be the legal ef-
fect, at least for the purpose of taxation, and made so by the
revenue law, by its definition of "real property," and "per-
sonal property," it enacting that "the terms 'real property '
and 'land/ wherever used in this act, shall be held to mean
and include not only the land itself," etc., "with all things
contained therein, but also all buildings, structures and im-
provements, and other fixtures of whatsoever kind thereon,"
etc. " The term 'personal property/ wherever used in this
act, shall be held to mean and include every tangible thing
being the subject of ownership, etc., and not forming part or
any parcel of real property, as herein defined." Gross' Stat.
569.
Undoubtedly it would be the duty of the assessor to observe
the definitions in said act given, in his assessment of both real
488 Gilkeeson et al. v. Brown et at [Sept. T.,
Opinion of the Court.
and personal property, but the assessment of the property of
the railroad company is not made under the general revenue
law of February 12, 1853, by a town assessor, but under secT
tion 22 of the act of February 10, 1851, incorporating said
company, by the Auditor of State, and for a State tax only,
so that we are not to be controlled by anything in the general
revenue law, in determining whether the property in question
is real estate or not.
Nor is it material to inquire how, aside from the statute, it
might be in the ordinary case of an absolute proprietor of real
estate,where improvements are made by a lessee which, although
as between himself and the lessor, might be personal property,
yet, lbr the purpose of taxation, whether they would not be
regarded as part or parcel of the lessor's land, and subject to
be taxed as such. It does not follow that the same rule would
apply to an artificial being created by statute for a special pur-
pose, and deriving therefrom all its powers, rights and priv-
ileges, in order to the accomplishment of such purpose.
The language of the provision in its charter, under which
the right of way ground of the company is taxable, is as fol-
lows : " And an annual tax for State purposes shall be as-
sessed by the auditor upon all the property and assets of every
name, kind and description, belonging to said corporation."
These warehouses were not built by or for the railroad com-
pany, but by private individuals, for their own private benefit,
and confessedly belong to them as their own personal property,
and do not fall Avithin the terms of the above cited provision,
as they are not property " belonging " to the corporation,
and so they do not come within the' exemption from taxation
of the company's roadway, provided in its charter as follows:
" And the said corporation is hereby exempted from all taxa-
tion of every kind, except as herein provided for," etc.
As there is no such exemption in terms, neither is it to be
made by any legal intendment. Considering the object of the
creation of this corporation, the purpose for which this right
1871.] Goit et al. v. Joyce et al 489
Syllabus. Opinion of the Court.
of way was granted to it, or acquired, it clearly was not with-
in the contemplation of the makers of the statute, that prop-
erty thus situated as these warehouses, should be exempted
from its just share of the burden of taxation common to all
other personal property in the State.
The amount of damages assessed upon the dissolution of
the injunction, from anything that appears, we can not say was
unreasonable.
The decree of the court below is affirmed.
Decree affirmed.
Orson W. Goit et al.
v.
Patrick Joyce et al.
1. Judgment — erroneous as to one defendant. Where judgment is ren-
dered against two in an action ex contractu, and the entire proof fails to
show any liability as to one of the defendants, the judgment will be re-
versed as to both.
Appeal from the Circuit Court of Cook county; the Hon.
John G. Rogers, Judge, presiding.
Mr. Geo. Scoyille, for the appellants.
Per Curiam: There is not the slightest evidence in this
record that Curtis, one of" the defendants below, was under
any liability to pay for the goods in controversy.
There is no proof of either an express or implied promise
on his part; no proof that he had any knowledge of the
purchase of the goods, or that he enjoyed any benefit from
them.
The entire evidence, so far as it shows any liability, only
discloses a liability on the part of Goit.
As the judgment was against both appellants, it must be
reversed,' and the cause remanded. Judgment reversed.
490 Ieoquois Ag'l Soc. v. Bates & Lippincott. [Sept.T.,
Syllabus. Statement of the case. Opinion of the Court.
Iroquois Agricultural Society
v.
Bates & Lippincott.
1. Agricultural society — which of two entitled to State bounty. Under
the act of May 18, 1857, and the subsequent act of 1861, providing for the
payment of $100 by the State to county agricultural societies, the society
first duly organized is entitled to the bounty.
2. Where two agricultural societies organized in the same county, each
applied for the State bounty, and the board of supervisors decided that
the society last organized was entitled to it, upon which the auditor acted
with notice of the facts: Held, on application for mandamus by the older
society, that the petitioner was entitled to the bounty, and that the action
of the board of supervisors could not affect the question.
This was an application for a mandamus against Charles E.
Lippincott, auditor of the State, and Erastus N. Bates, treas-
urer, to compel the former to issue his warrant on the treasurer
in favor of the petitioner for $100, and the latter to pay the
same.
Messrs. Roff & Doyle, for the petitioner.
Messrs. Blades & Kay, for the respondents.
Per Curiam : This is a contest between two agricultural
societies of Iroquois county, as to which is entitled to the sum
of 8100 directed by the act of May 18th, 1857, and the sub-
sequent act of 1861, to be paid from the State treasury to
county societies.
It appears the petitioner, holding its fairs at Onarga, in said
county, was duly organized under the act of 1857, Scates
Comp. 83, in May, 1866, and the other society, holding its
fairs at Watseka, was not organized until May, 1867. The
first society received its bounty every year from the time of its
organization until 1870, when this petition was filed. In that
year both societies demanded a warrant from the auditor of
the State upon the treasurer for the $100, and both presented
1871.] Ieoquois Ag'l Soc. v. Bates & Lippincott. 491
Opinion of the Court.
the certificate of the county clerk showing their due organiza-
tion. The auditor decided to issue his warrant to that society
which the board of supervisors of the county should decide
was entitled to it, and the board decided in favor of the society
last organized. The auditor thereupon issued his warrant to
that society, and the money was paid. The older society noti-
fied the auditor, in advance of the decision of the board of
supervisors, that it would not be governed by such decision,
and now prays a mandamus against the auditor to compel the
issue of a warrant in its favor.
We are of opinion that the mandamus must be awarded.
The law contemplates but one county society to which this
bounty is to be paid, and that must necessarily be the society
first duly organized. As long as such society keeps up its or-
ganization, no new association can be formed which can oust
it of its rights and privileges as a county society, without its
consent.
The law of 1857 was designed to provide for the incorpora-
tion of only one county society for each county, and such so-
ciety having been formed, no other could displace it.
The auditor, having notice of the facts, was obliged to de-
termine which of these societies was entitled to the money.
The action of the board of supervisors of Iroquois county
could not affect the question, and although the auditor un-
doubtedly acted in the utmost good faith, we are of opinion
he committed an error of judgment. The warrant was issued
in favor of a society not entitled to it, and this can not affect
the rights of the society which is entitled to it.
The petitioner has a legal right to the warrant and the pay-
ment of the money, and the peremptory mandamus must issue.
Mandamus awarded.
492 Edwards v. Evans. [Sept. T.,
Syllabus. Statement of the case.
Alonzo Edwards
V.
Benjamin P. Evans.
1. Judgment—; judge's entry is not. An order of the judge on his
docket for judgment on the verdict of a jury, not entered upon the record,
is not a judgment.
2. Reversal — special directions. Where the judgment of the court
below upon demurrer to the plaintiffs declaration was reversed, with
special direction to the court to render judgment in favor of the plaintiff
upon the demurrer and take an inquest of damages, and where the second
judgment entered under the remanding order was reversed at the suit
of the defendant beloAv, it was held, that the subsequent reversal abrogated
the direction given in the first order of reversal, and that the defendant
was entitled, on a showing, to plead to the merits.
Appeal from the County Court of Livingston county; the
Hon. L. E. Payson, County Judge, presiding.
This was an action of debt upon a penal bond. The court
below sustained a demurrer to the declaration, because no
consideration was averred for the undertaking. The judg-
ment was reversed by this court (26 111. 279), on the ground
that the seal imported a consideration, with special direction
to the county court to overrule the demurrer and render judg-
ment in favor of the appellee against appellant, and take an
inquest of damages. The judgment of the county court ren-
dered under this direction was reversed by this court on
errors confessed and the cause again remanded. The plain-
tiff below, at the June term, 1862, of the county court,
appeared and presented the mandate of this court on the last
reversal, and the order of this court on the first reversal,
directing judgment for the plaintiff, and thereupon the county
judge entered an order upon his docket for judgment in favor
of the plaintiff upon the verdict of a jury of inquest, but the
judgment was not entered on the record. The defendant sued
out a writ of error to reverse this supposed judgment, which
was dismissed on the ground that there was no judgment,
and nothing to reverse. After this, in September, 1862, both
1871.] Edwards v. Evans. 493
Opinion of the Court.
parties appeared in the county court, and defendant moved
that the cause be reinstated and a change of venue granted,
and filed affidavits showing grounds of defense, and that he
had no notice of the proceedings at the June term. The
county court overruled both motions. At the September
term, 1870, about eight years thereafter, the county court,
upon notice to defendant, ordered the entry of judgment nunc
pro tunc upon the verdict of the jury.
Mr. B. C. Cook, for the appellant.
Mr. Charles J. Beattie and Mr. N. J. Pilesbtjry, for
the appellee.
Per Curiam: From the record in this case, there has never
been a trial upon the merits, and we are now asked to affirm
the judgment on accpunt of the decision between the same
parties in Evans v. Edwards, 26 111. 279.
The suit was commenced in November, 1857. In Decem-
ber following, a demurrer was filed to the declaration, alleging,
as cause of demurrer, a want of consideration in the bond sued
on. This was sustained and judgment rendered against plain-
tiff for costs.
The suit was then brought to this court, and reversed wTith
directions.
In December, 1861, a judgment was again obtained in the
court below, and was reversed by this court in April, 1862.
This reversal abrogated the decision reported in 26 111. supra.
The supposed judgment, at the June term, 1862, of the
court below, was no judgment. It was never entered upon
the record. There was only a verdict and an order of the
judge upon his docket. Upon the motion and affidavit of
the defendant, at the September term, 1862, the verdict should
have been set aside, and the defendant should have been per-
mitted to plead and defend the suit.
The judgment is reversed and the cause remanded.
Judgment reversed.
494 O'Brien v. Haynes. [Sept. T.,
Syllabus. Opinion of the Court.
Benjamin O'Brien
v.
Elizabeth Haynes.
1. Process — alias icrit of replevin. Where the defendant in an action
of replevin is not served, or is improperly served, the suit must be con-
tinued and a second writ issued the same as in any other form of action.
2. Same — service. Where a writ or summons is served after the return
day, the service will be a nullity, and will not give the court jurisdiction
of the person of the defendant.
3. Appearance — effect on defective service. Where the record shows
the appearance of a defendant by attorney, and the filing of a plea to the
merits, and the attorney was employed in the case at a former term, the
defendant will be concluded by the action of his attorney, and all defects
and irregularities in the service will be cured.
4. Same — new trial. The defendant in this case was served after the
return day of the summons, and retained an attorney to defend. A new
summons was ordered and the cause continued. The attorney, at the
next term, filed a plea and proceeded to trial. After judgment, defendant
entered a motion for a new trial, and showed, by affidavit, that he had not
been served with the alias summons, and that he had a defense, detailing
facts, which, if proved, would have presented a conflict of evidence. The
court overruled the motion : Held, that the court did not err.
Appeal from the Circuit Court of Tazewell county ; the
Hon. Charles Turner, Judge, presiding.
Messrs. Cohrs & Saltonstall, for the appellant.
Mr. C. A. Roberts and Mr. N. W. Green, for the appel-
lee.
Mr. Justice Thornton delivered the opinion of the Court :
This suit was brought in replevin, to recover a mule, and
was finally tried upon a declaration in trover.
Counsel for appellant insist that there was no authority to
issue an alias writ of replevin.
1871.] O'Brien v. Haynes. 495
Opinion of the Court.
The first writ was served after the return day, and when it
had ceased to have any vitality. This did not give the court
any jurisdiction of the person, and no judgment could prop-
erly be rendered upon such service and return. The suit was,
however, pending in court, and it was proper to order the issu-
ance of another summons, and continue the cause.
Where the party is not served, a second writ of replevin
should be issued, as in any other form of action.
The statute requires that proceedings in an action of replevin
shall be commenced by plaint, with a summons to the defend-
ant. This summons must be served by reading to the defend-
ant, before he is in court. If the writ be returned not found
or if it be improperly served, the suit must be continued and
another writ ordered.
The statute further provides that, if the property named in
the writ shall not be found, or shall not have been delivered
to the officer, the plaintiff may file a declaration in trover, if
the defendant shall have been summoned. Thus it will be
seen that the defendant, in an action of replevin, must be sum-
moned, and there is no reason for a distinction between this
action and other suits in which an alias summons is always is-
sued where there is no service, or an insufficient one. The
assumed distinction would compel a plaintiff in replevin to
dismiss his suit upon failure to obtain service for the first term.
The suit was pending when the second writ was issued, and
we think that the order therefor was right.
This writ Avas duly returned, showing that the property
could not be found, and that it had been read to the defend-
ant. He thereupon appeared by his attorney, filed his plea,
and consented to a trial by the court, and judgment was ren-
dered against him.
A motion was then made for a new trial, based upon the
affidavit of defendant and his attorney. The latter stated that
he had been counsel for the defendant at a former term, in the
same suit; that he had no communication with him since said
term, and only entered his appearance to prevent a default.
496 O'Brien v. Haynes. [Sept. T.,
Opinion of the Court.
The defendant stated that he had a good defense, which he
detailed at length, and also that he had not been served with
any process, returnable to the term at which the judgment
was rendered.
The record shows conclusively that there was no new suit,
and the attorney had been employed to defend the suit in
which he filed the plea. He had accepted a retainer, and the
defendant was concluded by the action of his attorney. All
defects and irregularities in the service, if any existed, were
cured by the plea. Eastern v. AUum, 1 Scam. 250; Mitchel v.
Jacobs, 17 111. 225; Dunning v. Dunning, 37 111. 306.
The affidavits do not present sufficient grounds for a new
trial.
Even if all the facts detailed in the affidavit of the defend-
ant had been proved, we should not disturb the finding of the
court. The weight of the evidence would still be in favor of
the plaintiff.
If the witnesses of the defendant had been present at the
hearing, and testified in conformity to the affidavit, there would
still be only a conflict of evidence.
In such case, it is sufficient, if, by fair and reasonable in-
tendment, the judgment can be sustained.
Upon the whole record, we have no hesitation in affirming
the judgment.
Judgment affirmed.
1871.] Bestor v. Moss et al. 497
Syllabus. Opinion of the Court.
George C. Bestor
v.
William Moss et al.
1. New trial— finding as to facts. Where a case is fairly left to the
jury, under proper instructions, and the evidence is conflicting, both par-
ties being sworn, and the evidence objected to and admitted, even if irrele-
vant, could not have affected the verdict, a new trial will not be granted.
Appeal from the Circuit Court of Peoria county; the Hon.
S. D. Puterbaugh, Judge, presiding.
Messrs. Powell & McCulloch, for the appellant.
Messrs. Johnson & McCoy, for the appellees.
Per Curiam : This case was fairly left to the jury, under
proper instructions, and turned simply upon the question
whether the defendants had paid the debt sued for, or that
portion for which they were liable. The jury found they had.
The evk^nce was conflicting, and the parties were both sworn.
The evidence objected to by plaintiff bore upon the, issue so
far as to be admissible, and even if so irrelevant that it might
have beon excluded, it can not have affected the verdict.
Therr is **' ground for disturbing the verdict.
Judgment affirmed.
32— 61st III.
498 Culver r. Fleming. [Sept. T.,
Syllabus. Statement of the case. Opinion of the Court.
John Culver
V.
George Fleming.
1. Mechanic's lien — action by sub-contractor. Where a sub-contraclor
gives notice to the owner of the building, according to the act of 1S69
amendatory of the mechanic's lien law, and the proof shows that such
owner had funds in his hands belonging to the contractor at the time of
the notice, he will be liable in an action by the sub-contractor to recover
wages due him for labor on the building.
Appeal from the Circuit Court of Cook county.
The appellee brought suit against appellant, before a justice
of the peace, under the provisions of " an act amendatory of
the mechanic's lien law," approved April 5, 1869, for wages
due appellee for work done on the building of appellant,
under the employ of James Sullivan, contractor. On the
trial of the cause on appeal, the services were proved and ser-
vice of notice on appellee. It also appeared that at the time
of serving the notice, appellant still owed Sulliva^i a sum
greater than the claim of appellee.
Mr. A. T. Ewing, for the appellant.
Per Curiam: This suit was instituted by virtue of the
provisions of "An act amendatory of the mechanic's lien law,"
approved April 5th, 1869. The law was complied with in the
giving of the notice required.
We think it may be fairly inferred, from the evidence, that
the owner of the building had funds in his hands belonging
to the contractor at the time of the notice. His liability fol-
lows, as a matter of law.
The judgment is affirmed.
Judgment affirmed.
1871.] Uhlich v. Muhlke et al. 499
Syllabus.
Henry Uhlich
v.
John M. Muhlke et al.
and
John H. Muhlke et al.
V.
Henry Uhlich.
1. Principal and agent — of dealings beticeen them — and herein, of tie
burden of proof in relation to the fairness of the transaction. Where a con-
veyance is made to the confidential agent and adviser of the grantor, it is
not void merely by reason of the relation thus existing between the grant-
or and the grantee.
2. Nor does it devolve upon the grantee, standing in this relation, to
prove, in the first instance, that he did not use the influence he possessed
over the grantor to induce the deed — that he did not abuse the confidence
reposed in him.
3. A confidential relation gives cause of suspicion, and the circumstan-
ces under which a deed is made during such a relation, must be closely
scanned; and if a reasonable suspicion exists that confidence has been
abused where reposed, the deed should be set aside.
4. But the suspicion may be removed, and to render such a transaction
valid, it is only necessary to show that the other parly had competent and
disinterested advice, or, that he performed the act, or entered into the
transaction, voluntarily, deliberately and advisedly, knowing its nature and
effect, and that his consent was not obtained by reason of the power and
influence to which the relation might be supposed to give rise.
5. A gift by one to another, who has been for many years his confiden-
tial agent and adviser, is valid, unless the party who seeks to set it aside
can show that some advantage was taken by the agent of the relation in
which he stood to the donor.
6. Adequacy of consideration— fraud. A person owning a large aud
valuable property in the city of Chicago, obtained the services of another
as agent and confidential adviser, in the management of the estate. After
four years' service of an important character, to the principal, for which
the agent had received no compensation, the former conveyed to the latter
an undivided one-third of the property, of the value of about $125,000, the
deed reciting a consideration of $12,000, and "for other good and valuable
500 Uhlich v. Muhlke et al. [Sept. T.,
Syllabus.
considerations." There was no mone}r paid by the grantee, the onty con-
sideration for the conveyance being such services as he had rendered and
such as he agreed to render, in the matter of the management of the es-
tate. At the time of the conveyance there was an incumbrance upon the
entire propert}', amounting to $36,000, the conveyance being made subject
to one-third of the same. Simultaneously with the execution of the deed,
the grantee entered into a covenant to continue his services in the matter
of the estate committed to his care, even after the death of his grantor;
and if he himself should die, he covenanted that his successors after him,
at the expense of his estate, should render them. At the time of the trans-
action the grantee was engaged in a large and remunerative mercantile
business, by which he had already acquired property estimated at $50,000;
and soon after he made the covenant mentioned he closed his connection
with that business in order that he might bestow his entire time upon the
business of his employer. Upon the objection in a suit by one of the chil-
dren and devisees of the grantor, that the consideration for the deed was so
grossly inadequate that a court of equity ought to set it aside as fraudu-
lent, it was held, there was adequate consideration for the deed, and it was
valid.
7. Parent and child— absolute poioer of disposition of property by the
former. The owner of property has a right to convey it to whom he
pleases, there being no creditors; he may impose conditions upon any one
of his grantees, to make the deed to him inoperative; he may judge who
are the proper objects of his bounty, and, if free from insane delusion or
senile dementia, passing by his own children, give it to aliens to his blood.
A child has no natural right to the estate of his father— no such right us
can be asserted against the testamentary disposition of the estate by the
father.
Appeal from the Superior Court of Chieago ; the Hon.
John A. Jameson, Judge, presiding.
Mr. Wm. K. McAllister, Messrs. Nissen & Barnum, and
Mr. I. N. Stiles, for Henry Uhlich.
Messrs, Gooppich, Farwell & Smith, for Muhlke et ai.
1871.] Uhlich v. Muhlke et aL 501
Opinion of the Court.
Mr. Chief Justice Breese delivered the opinion of the
Court :*
Tin's was a bill in chancery in the Superior Court of Chi-
cago, exhibited by Henry Uhlich against John H. Muhlke,
Ernst Uhlich, August Uhlich and Walter Newberry, to set
aside certain deeds described in the bill, on the allegation
they were fraudulently obtained, and were null and void, for
the reasons, first, that the grantor was of weak and unsound
mind at the time of their execution and delivery; second) that
Muhlke obtained the first deed to himself, in abuse of the
trust and confidence reposed in him by the grantor, by fraud
and undue influence, without paying a consideration, or an
inadequate consideration; third, that all the other deeds were
obtained by fraud and undue influence while the grantor was
of weak and unsound mind; fourth, that all the deeds were
obtained through fraud and conspiracy, having for its object,
on the part of Muhlke and Ernst Uhlich, by undue influence,
not only to obtain a large share of the property of Carl
Uhlich, to the exclusion of complainant and August Uhlich,
but also fraudulently to obtain from complainant conveyances
confirmatory of such frauds, and further assurance of the title
to the lands thus fraudulently obtained by them, and to de-
prive complainant of the property which was given to him,
and to obtain, in addition, covenants of warranty from him of
their title; fifth, that the deed from complainant and wife was
not only obtained from them by fraud, but is without consid-
eration, and executed and delivered by them under a mistake
of law as well as of fact, and under threats and compulsion.
*This cause was originally decided at the September term, 1869, and Mr. Chief
Justice Bkeese delivered the opinion of the court. Subsequently a rehearing was
granted, and the cause was heard at the September term, 1871) before the full bench
of seven judges, as the court was organized under the new constitution, when an
additional opinion was filed, in which a majority of the court adhered to the origi-
nal opinion. Mr. Justice McAllister, who was of counsel on the first argument,
took no part in the decision or in the conduct of the cause on the rehearing.
Subsequent to the delivery of the original opinion, and prior to the rehearing,
Mr. Justice Lawrence became Chief Justice.
502 Uhlich v. Muhlke et al. [Sept. T.,
Opinion of the Court.
The bill prays, not only that these deeds be set aside, but,
also, for a partition of the estate conveyed by them ; for an
account of rents and profits; for an injunction; for the ap-
pointment of a receiver to collect the rents during the pen-
dency of the suit; for an order to compel Muhlke and Ernst
Uhlich to produce in court, and deposit with the clerk, all
papers, documents, etc., of Carl Uhlich, deceased, and all
title deeds, bonds, mortgages, etc., relating to the lands de-
scribed in the bill, and for general relief.
Newberry was a formal party only, and answered accord-
ingly.
A separate answer was put in by Muhlke, and a joint and
separate answer by Ernst and August, to the bill.
In Muhlke's answer, it was alleged that, on the 6th of July,
1861, Carl Uhlich made a will devising therein certain prop-
erty to the complainant, and to his other sons, Ernst and
August, and to his wife, all the rest of his real and personal
property, making Mrs. Uhlich and Muhlke executors, and re-
voking all former wills.
It is also alleged in the answer of Muhlke, that, after the
death of Mrs. Uhlich, which occurred in June, 1867, Carl, on
the 10th of July of that year, executed another will, giving
to his three children certain interests in land, and to Muhlke
a certain interest, and to John G. Harmon and others as trus-
tees, a tract of land on which to erect an orphan asylum —
Muhlke to be sole executor, not required to give bond, and re-
voking all former wills. Neither of these wills was ever offered
for probate.
The answers of the defendants deny all the allegations of
the bill charging fraud, undue influence, or any improper con-
duct, in procuring the deeds to be made, or that they did pro-
cure them to be made, and deny all matters charged in the
bill going to impeach the honesty and fairness of the transac-
tions on which the charges are based, giving a full history of
Carl, his wife, and of the various parties to the proceeding,
and denying unsoundness of mind of Carl Uhlich.
1871.] Uhlich v. Muhlke et al. 503
Opinion of the Court.
To the answers, replications were filed, but, by leave of the
court, they were withdrawn, in order to enable the complain-
ant to amend his bill to meet the allegations of the answers in
respect to these several wills of Carl Uhlich.
Complainant charges, that the first will was made whilst
Carl was of weak, imbecile, unsound mind and memory, and
was obtained and effected, by Ernst, August and Muhlke, by
fraud and undue influence ; and that the last supposed will
was effected and obtained by fraud and undue influence exer-
cised by Muhlke, Ernst and August, upon the weak and un-
sound mind of Carl, and in pursuance of and as part of a
scheme and conspiracy to procure an unjust and inequitable
division, among themselves, of the estate of Carl, and that
both wills are void and inoperative.
The replications were again filed, and the cause came on for
hearing on the bill, answers, depositions, exhibits and oral
proofs.
The court decreed substantially as prayed, except as to the
deed executed fry Carl Uhlich and wife to Muhlke, dated
March 20, 1865, which was adjudged to be valid. The court
also adjudged the will of July 6, 1861, to be a valid will.
From this decree complainant, on his part, and Muhlke and
Ernst Uhlich, on their part, appeal to this court, and assign
various errors.
The testimony and pleadings in the cause make a large
volume. The abstract of the record occupies two hundred
and twenty-one pages, and the record itself twelve hundred
and fifty printed pages, large folio. This mass of matter has
been fully examined and considered, and also the elaborate
opinion* of the learned judge who tried the cause, and we will
proceed to state the impressions they have made upon our
minds, and what conclusions they have induced.
AVe shall consider the appeals together; they being so inti-
mately connected.
504 Uhlich v. Muhlke et al. [Sept. T.,
Opiuion of the Court.
It is not to be expected that we shall state in detail the evi-
dence, but only the impressions it has made, the conclusions
to which it has led, and the law applicable thereto.
We will first consider the deed of March 20, 1865, from
Carl Uhlich and wife to Muhlke, as that is first attacked by
complainant.
It is insisted this deed is null and void, having been fraud-
ulently obtained, Carl having been, at the time of its execu-
tion, of weak and unsound mind; and also, that it was ob-
tained by Muhlke in abuse of the trust and confidence reposed
in him, by fraud and undue influence, without paying a con-
sideration, or an inadequate consideration.
These propositions will be considered together. The first
has no support from the evidence. There is not a particle of
proof, as Ave understand it, that, at the time the deed was
made, the grantor was of weak and unsound mind. On the
contrary, it is shown, he was a man of more than ordinary in-
tellect, fully understanding his position, and the extent and
value of his property and its condition, and fully capable of
appreciating the services Muhlke had rendered him in the
management of it.
The second proposition is the important one. The grantee
did sustain, at the time the deed was made, and had, for more
than four years previous thereto, sustained the relation of con-
fidential agent and adviser of the grantor.
What, then, is incumbent on the grantee to show to validate
a deed executed and delivered under such circumstances?
Such a transaction comes under the head of " constructive
frauds," and is so treated by law writers. The principle on
which courts of equity act, in regard to such cases, is a motive
of public policy, and designed, in some degree, as a protection
to the parties against the effects of overweening confidence and
self-delusion, and the infirmities of hasty and precipitate judg-
ment, 1 Story's Eq. Jur. sec. 307 ; and in sec. 308, it is fur-
ther said, "if a confidence is reposed, and that confidence is
abused, courts of equity will grant relief."
1871.] Uhlich v. Muhlke et al. 505
Opinion of the Court.
A few considerations must, Ave think, satisfy the most in-
credulous mind, that Muhlke, in accepting this deed, abused
no confidence which Uhlich, the grantor, had reposed in him.
Complainant, in his bill, does not allege any act done by
Muhlke, whilst this relation existed, tending to show any ad-
vantage taken by him of that relation, but the broad ground
is assumed that the relation itself forbids such a transaction,
and advantages taken will be presumed.
The great body of the evidence shows that Uhlich, in 18G0,
entertained apprehensions, his estate having become very large
and valuable, of his own inability to manage it, then considera-
bly embarrassed, and likely to become more so, by inattention,
or by the want of the requisite vigilance and skill. He had
three grown sons, but neither of them capable of rendering
any assistance. He was then near eighty years of age, with
a wife more than sixty, to whom he was much attached, pos-
sessed of good sense and devoted to him and to his interests,
and on whose kindness and judgment he relied. The times
were portentous of great and disturbing events, and their
angry threatenings were calculated to, and did, inspire alarm
in the whole business community. Uhlich had been involved
in the storm which passed over him in 1857, and had emerged
from it in debt, and in arrears in interest due on borrowed
money. His property, though large, was, for the most part,
unproductive, yielding him a revenue barely sufficient to
pay the annual taxes and occasional assessments upon it.
Every sign was unpropitious, and he was in a state of great
dismay and distress. In this emergency he called upon Mr.
Hartman, the pastor of a religious congregation of which he
was a member. He was in embarrassments which he deemed
inextricable. In this dilemma, his pastor advised him to pro-
cure the services of some competent man of business, to whom
he should give the management of his property, and recom-
mended the defendant Muhlke, a member of their church, as a
proper person.
506 Uhlich v. Muhlke et al [Sept. T.,
Opinion of the Court.
Mr. Hartman's account of this is so plain and simple and
natural, that we quote from his testimony. He says: Father
Uhlich came to him in his study; it was a cold clay; he had in
his pocket a bundle of papers, seeming to be deeds, or policies
of insurance, or legal documents, and said, "I am in great
trouble; I am sold and betrayed by my own flesh and blood,
and by my legal advisers," meaning his lawyers; said he had
brought a great deal of money to this country, and had lost,
since that time, many thousands; said he had lost five thous-
and dollars by one bank, and that he had so many expenses
and taxes to pay, and that all the land he had did not yield
him much; that he had many debts; that he did not under-
stand the laws and language of this country; that he had no
competent friend in this country to whom he might confide
his affairs, and that he feared he might become a poor man if
things continued in the manner they were. He then asked
Mr. Hartman, as his pastor, or spiritual adviser, to indicate to
him a competent and experienced man, or an attorney, or a
friend to whom he might entrust the management of his af-
fairs and property, and if he did not know of any such per-
son, then the leading men of the congregation should see to
him in his embarrassment. Mr. Hartman told him he could
not do anything for him, nor could the congregation, but told
him he should go to Mr. Muhlke and entrust his matters to
him, giving a promise that he would see Mr. Muhlke and speak
to him about it. Mr. Uhlich was satisfied, and said he would
go and see Mr. Muhlke about it, and not neglect it.
In answer to the question, did Mr. Uhlich, at this inter-
view, say anything else with regard to who had sold and be-
trayed him, he replied, yes, his son — his flesh and blood — us
he understood, his son who was managing his affairs.
Mr. Hartman spoke to Mr. Muhlke several times about
looking into Uhlich's affairs, and besought him, in God's
name, to help him. Muhlke refused for a long time, and it
was only by the importunity of Mr. Hartman he finally re-
solved to accept the position ; that his partner in business was
1871.] Uhlich v. Muhlke et al. 507
Opinion of the Court.
dissatisfied, that he was always attending to other people's
business.
After Muhlke looked into the business, which he found very
complicated, and when he was assisting Uhlich, Mr. Hartman
says that Uhlich expressed much gratification, and said if he
had had Muhlke from the beginning, under his management
he would have been one of the richest men in the city, and
could have accomplished all his plans in the old country as
well as in this, in regard to benevolence.
It would seem, from Mr. Hartman's testimoiw, that Uhlich
had a plan concerning a school in his native village in Saxony,
of which he was one of the founders, which he designed to
endow with ten or twenty thousand dollars, and a similar one
in this country. He had always schools and orphan asylums
in his mind, and said that money was a misfortune to people,
and that it was the greatest happiness which could be received
to a people to have a good education.
To understand Uhlich's remark about his being sold and
betrayed by his own flesh and blood, it is proper to state that,
in 1856, he had commenced the erection of a hotel on his
property on State street, and had employed the complainant,
at wages, to assist him, and after it was completed, employed
him to assist in keeping it. In August, 1860, he discharged
complainant, it would seem, from a want of confidence in him,
and under the belief he was neglecting his business, and was
intemperate in the use of intoxicating liquors; at any rate, the
father ceased from this time forth to have any confidence in
complainant, or much affection or respect for him.
To understand the allusion to the dissatisfaction of Mr.
Muhlke's partner, it is necessary to say, Mr. Muhlke was then
in a profitable mercantile partnership in the sale of dry goods
on State street, from which he was realizing remunerative
profits, and which bade fair, in time, to bring him more than
a competency.
It was ua cold day" when Uhlich made this call upon his
pastor "in his study/' In November, 1860, Mr. Uhliclrs
508 Uhlich fr. Muhlke et al [Sept. T.,
Opinion of the Court.
bankers had failed, having in their hands more than five
thousand dollars of his money, for the security of which he
had eighty acres of land, then worth much less than the
amount owing to him. It must have been, then, in the last
of that month, or in the next succeeding month of December,
that Mr. Muhlke was applied to to look into Uhlich's affairs.
He, it appears, was an unexceptionable man in every respect,
standing well in the mercantile community, and enjoying the
confidence of all his acquaintances; Was a German by birth,
but Americanized by a long residence in Chicago; understood
English well, and was a competent adviser to all his country-
men who might, and did, come to him for advice in all busi-
ness matters in which they were interested. Much of his
time was consumed in this way, and it is not surprising he
should have hesitated, having his own business to attend to',
to look into the complicated affairs of Uhlich.
At this time, or shortly after, certainly as early as January,
1861, Uhlich looks to Muhlke for advice, and, under the ac-
tive energies of his mind, his adaptation to comprehend and
manage a large estate, soon order took the place of confusion,
and the estate of Uhlich was put upon such a footing as to yield
large revenue for succeeding years, his debts were paid, and
peace, tranquility and contentment reigned, where so long dis-
trust, embarrassment and despondency had prevailed. That
much of this was due to the vigilance, skill and fidelity of
Muhlke, there can be no doubt on the evidence, and that he
was to those old people " a guardian angel" is so true that
this term which they gave him can scarcely be considered an
hyperbole.
Muhlke continued his attention to the business, though en-
gaged in mercantile pursuits of his own, from January, 1861,
without compensation being mentioned by either of the par-
tics, Uhlich occasionally making to him valuable presents.
All that was done, however, was under the supervision of
Uhlich himself, Muhlke being his adviser only, and acting
1871.] Uhlich v. Muhlke et al 509
Opinion of the Court.
only with the approval of Uhlich, Thus money was bor-
rowed, and to large amounts, by Uhlich, under the advice of
Muhlke, and used by the latter in valuable improvements, af-
fording almost princely revenues. In short, all that man could
do, aided by fortuitous circumstances, was done by Muhlke
to improve the estate and make it productive, and he was suc-
cessful', giving quiet to old hearts near breaking, and causing
precious drops to flow, where before ran only bitter tears.
Thus matters continued, and thus were the relations of
Uhlich and Muhlke up to the date of the deed in question,
March 20, 1865. For four years and more, compensation had
not been mentioned.
In July, 1861, Uhlich made his will, drawn up by Far-
well & Smith, with Avhom had been before associated in busi-
ness, and since, Mr. Goodrich, of whose family, when a boy,
Muhlke had been a member, and who, on one or more occa-
sions, had been his legal adviser in cases not personal to
Muhlke. There is no doubt a mutual confidence existed be-
tween them. By this will, the bulk of the property was de-
vised to Mrs. Uhlich, and Muhlke appointed executor, without
giving any security.
On the 20th of March, 1865, Uhlich and his wife, with
Muhlke, Avent to the law office of Goodrich, and, staying a few
minutes, Muhlke went away, leaving the old people with Mr.
Goodrich. This gentleman spent some hours with them in
ascertaining their wishes and in drawing the deed and an agree-
ment. The papers were fully explained by an interpreter
present, the clerk of Goodrich, Farwell & Smith, and they
understood them. Muhlke returned to the office after the
papers had been drawn and explained, and took no part in the
transaction except in assisting the interpreter, at his request,
in explaining the location of the property described in the
deed, whereupon the papers Avere executed by the parties.
The deed by Uhlich and Avife conveyed to Muhlke an undi-
\7ided one-third of real estate in Chicago, of the ATalue of
about one hundred and tAventy-five thousand dollars.
510 Uhlich v. Muhlke et al. [Sept. T.,
Opinion of the Court.
These are all the circumstances attending the execution of
the deed, of which any direct proof i^s afforded. The grant*
ors in the deed are dead, and the rules of law, when this cause
Mas tried, did not permit the grantee to speak. From them
we are called upon by complainant to say that the deed is null
and void, by reason of the relation then existing between the
grantor and grantee, the latter being the confidential' agent
of the grantor.
We have examined the rule of equity invoked by the com-
plainant, as applicable to such cases, and no commentator on
the principles of equity, and no reported case, goes to the ex-
tent of saying that, by force of such relation, a deed is ipso
facto void. If such was the rule, a grateful man, to whom
important services had been rendered, whose estate had been
saved from ruin by a friend who had not stipulated for any
compensation, would be prohibited from receiving any testi-
monial of the gratitude of the other. Kindness, important
services, and friendship to the distressed, would be under a
legal ban. A man, in the full possession of his faculties,
would be prevented from selling or giving away any portion of
his large estate to one by whose advice and counsel it had been
rescued fiom ruin. It is difficult, at all times, to prove a neg-
ative— to prove that a grantee, standing in this relation, did not
use the influence he possessed over the grantor to induce the
deed; that he did not abuse the confidence reposed in him;
nor does the rule require it. Kerr on Fraud, 103.
A confidential relation gives cause of suspicion, and the
circumstances under which a deed is made during such a re-
lation, must be closely scanned; and if a reasonable suspicion
exists that confidence has been abused where reposed, the deed
should be set aside. Suspicion may be removed, and when
the circumstances attendingthis transaction are closely scanned,
not a scintilla of doubt can remain that the whole thing was
the outpouring of grateful hearts to the best and most cher-
ished friend they had on earth, and who had raised them up
from misery to happiness. The property was their own; they
1871.] Uhltch v. Muhlke et al. 511
Opinion of the Court.
had a right to do with it as they pleased; and after giving
away one-third, as some recompense to their friend, they had
enough remaining to make them very rich, and more than they
knew what to do with.
We think the established facts of this case remove all sus-
picion of abuse of confidence, or of fraud, constructive or
actual.
To render such a transaction valid, it is only necessary to
show that the other party had competent and disinterested ad-
vice, or that he performed the act, or entered into the trans-
action, voluntarily, deliberately and advisedly, knowing its
nature and effect, and that his consent was not obtained by-
reason of the power and influence to which the relation might
be supposed to give rise. Kerr on Fraud, 101, and the many
cases cited under note (1).
It can not be pretended, in this case, that the grantors in
this deed did not act voluntarily, deliberately and advisedly,
well knowing the nature and effect of the act. Can it be
doubted these aged people, between whom the closest confi-
dence existed, who both loved Mr. Muhlke, who fully appre-
ciated his services, who knew he had never demanded any re-
compense, who had no child or children on whom their best
affections centered, who were oppressed by the magnitude of
their own wealth, made great by Muhlke, that they had talked
over the subject of compensation, in the form it finally as-
sumed, many a time? There can be no doubt about it. No-
one, has impeached the mental soundness of Mrs. Uhlich, or
questioned her capacity, or believed that she was ignorant of
the position she and her husband occupied towards Muhlke,
and that she was his adviser in this matter there can be but
little doubt. Were they alive to speak, they could doubtless
tell how many hours, day and night, they had taken sweet
counsel together as to the manner and form in which they
should compensate their benefactor and ''guardian angel."
Having more than enough for themselves, and desiring to se-
cure Muhlke's services when she should be a widow, which
512 Uhlich v. Muhlke et al. [Sept. T.,
Opinion of the Court.
was then probable, how natural was it for them to cause the
compensation to assume the form it did.
As ground for supposing this deed was the result of undue
influence by Muhlke, arising out of his relation to Uhlich, it
is said by complainant, the old gentleman was involved in a
church connection, the power of which was brought to bear
upon him in favor of Muhlke, who was a member of the same
church.
"We have already quoted some of the testimony of Mr.
Hartman, the pastor of the church, and fail to perceive any-
thing in it, or in that of any other witness, to justify such a
belief; nor does any portion of his testimony raise such a sus-
picion. He told Uhlich, when he applied to him for advice,
that neither he nor the church could help him; that he must
get Mr. Muhlke, who was a man of business. Here, certainly,
is no church pressure upon him. As was natural in his afflic-
tion, he applied to his pastor for advice, and that is all.
It is also said that Muhlke caused the removal of the old
people from the south to the north side, placing them upon a
lot adjoining his own, in a new house he caused to be built foi
them with Uhlich 's money, in order to withdraw him from in-
tercourse with his sons and friends residing on the south side,
and with a view to get them more completely in his power.
A\re do not think the evidence sustains this view. It is ap-
parent, from the facts attending this removal, that Uhlich's
motive in removing was to render more easy the intercourse
which was becoming more and more necessary between him
and his agent. His residence on the south side was four miles
distant from that of Muhlke, and in a neighborhood not then
very desirable, there being more drinking saloons than school
houses orchurches, to which his sons, August and complainant,
could have ready access.
Muhlke's motive may be ascribed to the fact that, as he had
become Uhlich's agent, in managing a large estate, frequent
consultations were necessary, and which could be more readily
1871.] Uhlich v. Muhlke et al. 513
Opinion of the Court.
had with his principal on an adjoining lot. There is no ground
for charging improper motives in this particular.
Upon the other ground, we do not perceive that Muhlke at
any time exaggerated, the extent and value of his services to
Uhlich, with a view to a great reward from him, or that he
boasted of them at all. It was Uhlich who did this, and he
had good cause.
"We concur with the learned judge who tried this cause in
the Superior Court, that this deed was the free and voluntary-
act of Mr. and Mrs. Uhlich, there being no constraint or in-
timidation shown, or abuse of confidence. It is also in proof
that, years after its execution, the grantors, on several, occa-
sions, when with their friends, not connected with or under the
influence of Muhlke, expressed their satisfaction that they had
executed this deed, and that, in their opinion, Muhlke de-
served all he had received, and it was further ratified, impliedly
at least, by Uhlich, when he subsequently executed the deeds
disposing of his property in September, 1867, for at that time
he made no disposition of the property included in this deed,
considering it as the property of Muhlke.
It is perhaps true, as urged by complainant, many men could
have been found in Chicago who would have attended to
Uhlich's business for four or five thousand dollars a year, and
yet that very man so employed might have swamp'd the whole
estate in half that time.
It was the good fortune of Muhlke to possess energy, fidel-
ity and business talents, and his praise that he employed them
all for the best interests of his constituent. Why shall he not
have a recompense?
But it is further insisted by the complainant, that the deed
bears the impress of a sale, and being for the expressed con-
sideration of twelve thousand dollars, carries a falsehood on
its face, and that the unusual clause, uand for other good and
valuable considerations," is indicative of a fraudulent intent,
or at least of a desire to conceal something which could not
bear the light, but yet of which the guilty party might desire
33— 6 1st III.
514 Uhlich v. Muhlke et a/. [Sept. T.,
Opinion of the Court.
at some time to take advantage ; and he further insists that the
consideration is so grossly inadequate as to compel a court of
equity to set it aside as fraudulent.
It is said that no such money consideration was paid, and
there is no proof it was paid. It is proved, however, that the
lands, of which an undivided third was conveyed, were sub-
ject to a mortgage to Newberry of $30,000, which, with the
interest up to the day of the date of the deed, amounted to
$36,000.
The conveyance was made to Muhlke, subject to the pay-
ment of one-third of all the incumbrances upon the property,
and though he did not covenant to pay them, still, no title to
the property could be enjoyed by him until he should relieve
it from the lien. By accepting the deed, Muhlke impliedly
undertook to pay his proportion of the incumbrance on the
premises, and though that might not of itself be a sufficient
consideration for a conveyance of one-third of the property,
which exceeded in value many times the amount of the incum-
brance, yet it may relieve it from the charge of being fraudu-
lently made, when it appears it was satisfactory to the grantor,
at the time, though it may not be satisfactory to the complain-
ant, now.
Cases may be found, perhaps, and one is cited, Murray v.
Palmer, 2 Schoales & Lefroy, 482, where it was held that these
words, "thrown into the body of a deed of purchase, are
always of themselves symptoms of fraud." They are but
symptoms, which may be removed by the real facts of a case.
What are the facts in this case? Muhlke had rendered four
years' service, of the most important character, to Uhlich, for
which he had received no compensation, and on the day of the
date of the deed, and simultaneous with it, he entered into a
covenant to continue those services even after the death of
Uhlich; and if he himself should die, he covenanted that his
successors after him, and at the expense of his estate, should
render them.
1871.] Uhlich v. Muhlke et al 515
Opinion of the Court.
The proof shows that, immediately after entering into this
covenant, Muhlke endeavored to free himself from his mer-
cantile partnership, but without success. By the articles of
co-partnership, it could not terminate under one year, and
although it had been determined to carry it on, with Muhlke
at the head, beyond that term, yet he caused an end to be put
to it, at the expiration of the year, left the concern, opened an
office in "Uhlich's block," devoting his entire time to the busi-
ness of his employer.
It is in proof, when this covenant was entered into by
Muhlke, his business as a merchant was large and remunera-
tive, and gave promise of a speedy fortune ; in fact, he had,
by it, acquired property estimated at $50,000. It is by no
means certain that he did not, by thus surrendering such a
business, deprive himself of gains which would have amounted
to the value of the property conveyed to him at the time it
was conveyed. We think there was adequate consideration
for this deed, and must hold it valid.
This topic naturally suggests some other considerations. It
may be said the true relation subsisting between Uhlich and
Muhlke was that of principal and agent, confidential if you
please, and nothing more. In relation to such, the rule is well
settled, that a gift by one to another, who has been for many
years his confidential agent and adviser, is valid, unless the
party who seeks to set it aside can show that some advantage
was taken by the agent of the relation in which he stood to the
donor. Kerr on Fraud, 125. It is also there held, that there
is no rule to prevent an agent from dealing with his principal
in respect to the matter in which he is employed as agent, but
he must show, to the satisfaction of the court, that he gave
his principal the same advice in the matter as an independent
and disinterested adviser would have done. lb. 125.
If no advice is asked of the agent, and none was necessary
in this case, none could be given. The transaction is not to be
based on these narrow grounds. The whole field must be
surveyed, the most prominent objects regarded, and the true
516 Uhlich v. Muhlke et al. [Sept. T.,
Opiniou of the Court.
nature and character of the transaction considered, which we
have endeavored to do, and find it unlike, in its most import-
ant features, an}' one of the numerous cases cited. We have
examined all the cases accessible to us, which have been cited,
and find no one of them, in its leading features, like this. It
is not like the case of Butler et al. v. Haskell, 4 Dessaussure,
651. The note of that case is: The heirs apparent of an
idiot, whose estate was in the hands of a committee, being
weak, illiterate and necessitous, and finding a difficulty in
procuring and perpetuating the evidence of their relationship,
employed an agent to transact the business for them, at a com-
mission of ten per cent on the amount to be recovered; the
agent afterwards purchased their interest in the estate at about
one-fourth its ultimate value; when the estate was recovered,
he took from them, in pursuance of his purchase, a convey-
ance of their interest and a power of attorney to promote the
decree, and to receive to his own use their share of the estate
yet to be accounted for. The contract of purchase was set
aside on the ground of gross inadequacy of price, connected
with the weakness and necessities of the sellers ; and on the
further ground, that the agent was legally incapacitated to
purchase from his principal the estate which was the subject of
the agency, so long as this relation of confidence existed.
This decision was made in 1817, and the last clause of it is
not the law as now understood, as the authorities abundantly
show. Thus, Mr. Justice Story says, in his treatise on Equity
Jurisprudence, "it is therefore for the common security of all
mankind, that gifts procured by agents, and purchases made
by them from their principals, should be scrutinized with a
close and vigilant suspicion. Agents are not permitted to be-
come secret vendors or purchasers of property which they are
authorized to buy or sell for their principals; or, by abusing
their confidence, to acquire unreasonable gifts or advantages ;
or indeed, to deal validly with their principals in any case,
except where there is the most entire good faith, and a full '
disclosure of all facts and circumstances, and an absence of
1871.] Uhlich v. Muhlke et ah 517
Opinion of the Court.
all undue influence, advantage or imposition." 1 vol. sec. 315.
It is not like the case of Huguenin v. Baseley, 14 Vesey, 272,
where a widow lady settled upon a clergyman and his family
the great bulk of her estate, of the value of which she was
ignorant, she living in the West Indies, some thousands of
miles from the property. It was a clear case of imposition,
undue influence and fraud.
It is not like the case of Pickett v. Loggon, ib. 215, where a
conveyance by lease and release and fine was set aside upon
great inadequacy of consideration combined with misrepresen-
tation and surprise upon parties in extreme pecuniary distress,
ignorant of their interests, and not properly protected. In a
note to this case is the following passage from Story's treatise,
from which we have quoted, supra, sec. 251 : " If proper time
is not allowed to a party, and he acts improvidently ; or if he
is importunately pressed; if those in whom he places confi-
dence make use of strong persuasions; if he is not fully
aware of the consequences, but is suddenly drawn to act; if
he is not permitted to consult disinterested friends, or counsel,
before he is called upon to act in circumstances of sudden
emergency, or unexpected right or acquisition. "
It is not like the case of Greenfield's Estate, 2 Harris, 14
Penn. State R. 489, where a widow lady, of the age of eighty-
six, hard of hearing, and otherwise infirm, made a deed of
conveyance to four persons, for the consideration of $100, one
of whom was her confidant and adviser, in which an estate
was conveyed worth $200,000. The deed was absolute on its
face, but was accompanied by a written declaration of trust,
executed on the same day. Neither of the deeds was read to
her or by her, and she was dependent on others, in whom she
placed confidence, for advice and direction in her pecuniary
affairs. The court say, " looking to the whole case as it is pre-
sented by both proofs and pleadings, the questions may be
asked, was Mrs. Greenfield aware that, by the terms of the
declaration, her estate was to be burdened with the payment
of $40,000 as compensation to the trustee? Did she know that
518 Uhlich v. Muhlke et at [Sept. T.,
Opinion of the Court.
this sum was payable, though each of the trustees might de-
cline the burden of the trust within a year after its creation?
She might have been acquainted with the first provision with-
out being cognizant of the last, for they are widely separated
in the deed. Who shall say it was not so? And yet to sus-
tain it, I repeat, it must be clearly established she not only
knew of, but comprehended both thoroughly. It is extremely
difficult to believe she understood, and deliberately assented
to this. The doubt is sufficient to invalidate the provision."
The case of Griffiths v. Robins, 3 Mad. Ch. R. 105, top paging,
is so meagre of facts, unaccompanied by any argument of the
court, that it can not be regarded as authority on this point.
The court say, "I do not think it necessary to enter into all
the transactions stated to be attendant on the deed, and in the
manner which it was prepared. It is sufficient to say, that
the defendants have not made out that case which the policy
of this court requires from persons standing in that relation to
the donor in which they have placed themselves." The de-
cree was according to the prayer of the bill, that the deeds of
gift be given up.
It is not like the case of Whelan v. Whelan, 3 Co wen. 537,
decided in the court of errors. That was a clear case of fraud
and imposition practiced by a son, Avho had full control over
his father, by which he obtained from his father a deed for his
farm, valued at $9000.
It is not like the case of Hatch v. Hatch, 9 Vesey, 292,
where a conveyance from a ward to her guardian, under cir-
cumstances showing fraud and imposition, was set aside.
The case of McArtee v. Engart, 13 111. 242, decides only,
that mere inadequacy of consideration in the conveyance of
land, as between vendor and vendee, would not justify the in-
terposition of a court of equity to set aside the conveyance,
unless it was so gross and palpable as to shock the moral sense;
but, when fraudulent practices are used, under such peculiar
circumstances as make the vendor the prey of the vendee,
1871.] Uhlioh v. Mtjhlke et al. 519
Opinion of the Court.
the aid of the court may be had. The facts of the case show
fraudulent practices of an aggravated character.
The case of Casey v. Casey, 14 ib. 112, but recognizes the
well established rule which we have quoted: when confidence
is reasonably reposed, it must not be abused. The party relied
on must see that he meets fully and fairly the responsibility
of his position, and takes no advantage, either to the injury
of another or for his own gain.
The case of Jennings v. McConnel, 17 ib. 150, was a case
between client and counsel, and the uniform rule recognized,
that, in such cases, it is not incumbent on the client to prove
fraud ; upon showing the relation, the onus is upon the attor-
ney to show fairness, adequacy and equity, and upon failure to
make proof, courts of equity treat the case as one of construc-
tive fraud.
The case of Dennis v. McCagg, 32 ib. 429, is to the same
effect.
The case of Baldwin v. Dunton, 40 ib. 188, is upon the ques-
tion of mental capacity to make a contract for the sale and
conveyance of land, and has no bearing upon the point now
under discussion.
The case of Gibson v. Russell, 2 Young and Collier, 21 Eng.
Ch. Rep. 104, has a direct bearing on one point of this part
of the case, and that is, in relation to the expressed money
consideration. In that case, there was a simulated payment
of £1000, effected in this way: The grantee, an old and in-
firm man, and not in full possession of his faculties, but worth
£30,000, made a conveyance to his medical attendant of the
most valuable part of his estate, on the payment by the latter
of that amount of money, which the grantor had privately
handed to him for that express purpose. The deed, it was
held, stated, contrary to the truth, a money consideration, and
that was held one of the proofs of fraud in obtaining the con-
veyance.
If the consideration of the deed now in question rested
alone upon the money expressed in it, and there was in fact no
520 Uhlich v. Muhlke et al. [Sept. T.,
Opinion of the Court.
money paid, it would be, palpably, a circumstance from which
fraud might be inferred, if there was proof the grantor was
imbecile, or incapable of knowing what he was doing. But
we have already said all we deem necessary to be said on this
point of the case. We are satisfied the deed of March 20,
1865, is liable to none of the objections made to it, and is, in
all respects, a valid instrument.
We Avill now consider the deeds executed in September,
1867.
It is objected to those, also, that they were obtained by fraud
and undue influence, while the grantor was of weak and un-
sound mind, and were the result of fraud and conspiracy on
the part of Muhlke and Ernst, by undue influence, not only
to obtain a large share of the property of Carl Uhlich, to the
exclusion of complainant and August, but also fraudulently
to obtain from complainant conveyances confirmatory of such
fraud, and further assurance of the title to the lands thus
fraudulently obtained by them, and to deprive complainant of
the property he was told was given to him, and to obtain, in
addition, covenants of warranty from him of their title. And
further, that the deed of complainant was obtained from him
through fraud, and was without consideration, and executed
and delivered under a mistake of law and of fact, and under
threats and compulsion.
In regard to these deeds, we can not concur with the views
expressed by the learned judge who tried this cause. Nor do
we concur in the opinion, that the will of 1861 was valid for
any purpose connected with this cause. It had not been pro-
bated, and no rights were claimed under it, by any of the par-
ties to this suit, and was superseded by the will executed July
10, 1867, which, in its turn, was superseded by the deeds of
September of that year. The will of 1867 was not probated,
nor were any rights claimed under it, nor was it before the
court for adjudication.
The charges in the bill of complaint against these deeds are
of a loose and general nature, and no proof is offered to
1871.] Uhlich v. Muhlke et al. 521
Opinion of the Court.
sustain them, it being taken for granted the court will presume
them to be true from the relation which Muhlke bore to the
grantor, Carl Uhlich, and that he, by reason of his control
over Ernst, could make him his tool in a conspiracy to de-
fraud complainant of his rights.
The idea that the old man was incapable, by reason of men-
tal infirmity, to make the deeds, has nothing to rest upon.
He was quite as competent in 1867 as he was in 1865, when
he made the deed of March 20 of that year. Nothing had
occurred since then to weaken his mental powers. His physical
powers were impaired somewhat, as he had become nearly
blind, but in other respects he had no infirmity not common
to persons of his age. IAndsey v. Lindsey, 50 111. 79. He had
competent understanding and a disposing mind, and remem-
bered well all he had done, and told his friend, Hammermil-
ler, what property he had conveyed to this and to that son,
and to Muhlke.
But it is said, these deeds were the consequence of the will,
and as that was effected by the influence of his wife, when on
her death bed, a fortnight previous, it was not his will, and
the deeds, therefore, can not be considered as his voluntary
act.
There is not a particle of evidence in the record of any in-
terference by Mrs. Uhlich with her husband as to the terms
of a will. She was desirous the will which bequeathed to her
the bulk of the estate should be changed, as her death was
approaching, but how changed, who were to be the beneficiaries,
no witness has stated. All we know about it, is the statement
of Elizabeth Uhlich, in which she says: "On the evening
of the day Mrs. Uhlich died, Mr. Uhlich called us up to the
bedside of the old lady, who was in the front room, and he
told us he would institute Mr. Muhlke as a child in the will,
because he had well attended to his affairs and to his business,
and that if it had not been for Mr. Muhlke, we would all have
to carry saw-bucks, and that if Henry got a start, or a begin-
ning, he would run the whole of it through. I don't know
522 Uhlich v. Muhlke et al. [Sept. T.,
Opinion of the Court.
whether he meant he would spend it, or that, if he got hold,
in any way, he would spend it in law. And he further told
us we should not hate Mr. Muhlke, but live together in a
brotherly spirit; that this man had deserved it."
The record will be searched in vain for evidence of influ-
ence, undue or otherwise, exerted by Mrs. Uhlich, or by any
other person, over the testamentary disposition of his estate.
There is no evidence of it anywhere, other than the fact that
Muhlke was a great favorite of Mrs. Uhlich, and it might be
inferred, when she was informed he was to be a child in the
will, and she expressed no dissatisfaction therewith, that it was
at her own instigation. But this would be a very forced in-
ference, which no court would be justified in drawing, for the
purpose of invalidating a will in other respects valid.
We see no evidence that this will was the conception of
Mrs. Uhlich, or that she had the least agency whatever in
causing it to be executed, save and except a wish she often
expressed, in expectation of her death, that her husband should
make another will in her lifetime, which he declined to do.
Mr. Uhlich, judging from the testimony, was not a man
of malleable mind, to be beaten out or shaped by any design-
ing person. He had his own mind, and his own notions of
right and justice, and acted upon them on all occasions. The
fact there were unkind feelings between him and his wife about
the will, amounts to nothing, as they disappeared in a moment.
He was kind to her, and confided in her to her dying day.
For aught that appears in this cause, this will, if offered for
probate, should have been admitted as the last will and testa-
ment of a man of sound and disposing mind and memory, un-
influenced by any one.
But there is no necessity for giving to it much considera-
tion, as another and different disposition of the property speci-
fied in it was subsequently made by the testator in his lifetime,
which was, the several deeds executed in September following.
AVe have purposely laid out of view the conduct of com-
plainant towards his parents, or the expression of any opinion
1871.] Uhlich v. Muhlke et al. 523
Opinion of the Court.
upon his claims to paternal confidence and regard, believing
it is wholly immaterial, in treating of these deeds, to designate
the status he ought to occupy.
We take the ground, that all the property conveyed by these
deeds, being the property of Carl Uhlich, he had an unques-
tioned right to convey it to whom he pleased, there being no
creditors ; that complainant had no claim to it, nor any other
of his sons; that the grantor had a perfect right to impose
conditions upon any one of the grantees, to make the deed to
him operative; that he had a right to judge who were proper
objects of his bounty, and, if free from insane delusion or
senile dementia, passing by his own children, give it to aliens
to his blood. This principle was distinctly announced by this
court in the case of Heuser et al v. Harris, 42 111. 425, and
Clearwater v. Kimler, 43 ib. 272, and is the doctrine of the
American courts. In the first case, it was said, a child has no
natural right to the estate of his father; if he has, it is a right
which can not be asserted against the testamentary disposi-
tion of the estate by the father. A disposition of an estate by
the owner, by will or deed, there being no legal impediment,
determines its destiny.
The whole principle was embraced in the language of the
old man, when, on the 21st of September, 1867, the parties
had met at his house to receive and give deeds. When every-
thing was explained to the complainant, he saying that he un-
derstood it himself; that he was not a boy, but hesitated to
sign the deed required of him, " Won't you take that, if I give
you so much? Then I'll give you nothing; then you shan't
have anything ; I can do what I please with my property."
This property belonged to Carl Uhlich. He disposed of a
portion of it to complainant, in value not far from $70,000, on
condition complainant should release to others of his grantees
of other portions of the property, all his right, title and in-
terest to such other portions, with special covenants against
himself. He accepted the deed with that condition. He ex-
ecuted the clause after full consideration of three days, knowing
524 Uhlich v. Muhlke et al. [Sept. T.,
Opinion of the Court.
its contents and effect. He, in his father's lifetime, took
possession of his portion, sold some of it, mortgaged some, and
exercised complete dominion over it, and now asks that all the
proceedings shall be set aside, for reasons having no founda-
tion in fact, and unsupported by any principles of equity or
justice.
This arrangement by deeds, rather than by will, may be re-
garded in the light of a family arrangement, which is favored
by courts. Kerr on Fraud, 364.
There is nothing to show the father was not a free agent in
thus distributing his property, or incompetent in any degree.
His desire was to satisfy all his children, including complain-
ant, for whom it would appear he had but little affection. It
was made by Carl for the purpose of avoiding litigation after
his death. He had the right to dictate the terms on which he
would make the distribution. Complainant accepted those
terms, and must be concluded by his own voluntary act. His
father had the right to omit him entirely, but out of regard to
the memory of his deceased mother, he gave him an ample
fortune, of which he at once took the control.
The fact that complainant's deed of release to Ernst and
Muhlke conveyed away the best portion of the estate granted
to him, can not operate to upset all these proceedings. It was
a mistake, clearly, which the parties, on being informed of,
proffered to rectify at once, and executed proper deeds of con-
veyance for such purpose, so that complainant might be as-
sured in the title to all his father had granted to him.
There is nothing in this case to commend it to the favorable
consideration of a court of equity. There is much to show
complainant should be grateful for that which has been given
him.
On the whole case, we are of opinion that so much of the
decree as establishes the deed of Carl Uhlich and wife to John
H. Muhlke, of the date of March 20, 1865, to be a valid deed,
be and the same is affirmed ; and so much thereof as estab-
lishes the will of Carl Uhlich, of July 6, 1861, a valid will,
1871 J Uhlich v. Muhlke et al 525
Opiniou of the Court.
and the deeds of September 19 and September 27, 1867, par-
ticularly described in complainant's bill, as invalid, be reversed,
and the said deeds be and the same are hereby declared to be
good and valid in law. The costs to be paid by the complain-
ant, Henry Uhlich.
Decree modified.
Per Curiam: A rehearing having been granted in this
cause, the same was heard at the September term, 1871, of this
court. After the rehearing was granted, it was suggested to
the court that Henry Uhlich, the complainant, had died, leav-
ing a last will and testament, by which he appointed his wife,
Louisa Augusta Uhlich, his sole executrix, and constituted her
his sole devisee, since which the cause has proceeded in her
name.
Elaborate arguments were presented at the second hearing,
which we have carefully considered, and have again reviewed
the whole ground on which the opinion filed was based, and
find nothing therein we desire to correct, believing the law is
therein correctly stated and applied to the facts proved. A
majority of the court abide by the opinion as filed, and it
must stand as the judgment of the court.
In that opinion is found this clause : " The fact that com-
plainant's deed of release to Ernst and Muhlke conveyed away
the best portion of the estate granted to him, can not operate
to upset all these proceedings. It was a mistake clearly,
which the parties, on being informed of, proffered to rectify at
once, and executed proper deeds of conveyance for such pur-
pose, so that complainant might be assured in the title to all
his father had granted to him."
In order to ascertain if such deeds of conveyance have been
made, acknowledged and delivered, or tendered, by Ernst
Uhlich and Muhlke, in the lifetime of Henry Uhlich, the
cause is remanded to the Superior Court of Cook county; and
should it there be made to appear such deeds have not been
executed and acknowledged, the Superior Court will order and
526 Uhlich v. Muhlke et al. [Sept. T.,
Dissenting opinion by Mr. Justice Thornton.
direct the same to be executed and acknowledged in a reason-
able time, to be fixed by that court, and delivered to the pres-
ent complainant, or deposited with the clerk of the said court
for her use, after the same shall be approved, as to form and
substance, by said Superior Court.
Mr. Justice Thornton, dissenting :
I can not agree to the opinion of a majority of the court in
this case, and the importance of the principles and the large
interests involved, require more than a bare dissent.
The opinion holds, that the mind of Carl .G. Uhlich was
sufficiently active and vigorous to enable him to comprehend
fully the intent and effect of the several deeds executed by
him.
After a careful reading of the testimony, I am compelled to
a different conclusion. The evidence is voluminous, and a
glance can only be taken of it.
When Muhlke undertook the management of affairs, Uhlich
was eighty years old. He was a native of Saxony, and could
neither read, write, nor speak the English language.
Though there is some discrepancy in the evidence, as to his
mental condition, from the assumption of the agency, in 1861,
until his death, in 1867, yet the great preponderance, and the
most reliable, indicates an enfeebled condition, both of mind
and body. The witnesses for complainant refer to acts and
language irreconcilable with a sound and healthy intellect,
while the witnesses for defendants generally express mere opin-
ions.
A number of persons who had known Uhlich for from seven
to twenty years, testified that he was childish, his memory
almost a blank, and that often he did not recognize persons
whom he had known intimately for years. On the day suc-
ceeding the death of his wife, he had forgotten all about the
sad event, which naturally would be indelibly impressed upon
1871.] Uhlich v. Muhlke et al. 527
Dissenting opinion by Mr. Justice Thoknton.
his memory. For some time before his death he had to be
nursed and dressed, as a child. He yielded readily to flattery,
and had strong dislikes and prejudices. In the vigor of his
manhood, he was intelligent, and was active and prompt, be-
fore care and age and sickness had weighed heavily upon him.
But for years before his death his conversation was deficient
in coherence. At times he was singularly strange and erratic.
Though rich, he seriously apprehended that he would be re-
duced to poverty, and would gather up and eat scraps of meat
and bread which had been thrown away as offal. He would
frequently converse upon the subject of religion, the end of
the world, and the day of judgment, and would become so ex-
cited as to imagine that he saw athe Kingdom of Heaven",
and his deceased daughter, in full view. He conceived the
idea that, at his death, he would be transferred to the moon.
An old acquaintance, who had known him in Saxony since
1828, visited him in 1864, and spoke to him about the politics
of the day. The reply shows a crazed condition of mind. It
was: "This amounts to nothing. I am what Mr. Muhlke
is. Here they come together, the Turk and the Anti-Christ,
and when they get through, the Turk and the Anti-Christ will
come and cut everything to pieces, and Chicago will sink
down."
This witness said Uhlich did not speak figuratively, but
seemed to be in a state of enthusiasm, and that the conversa-
tion was discontinued, and he was satisfied that no man of
sense would talk in such manner.
In the language of some of the witnesses, Uhlich himself
said frequently " he forgot everything." " He was no longer
capable of doing anything any more." " Sometimes he did
not know what he was doing." " Had to give up his business
to Muhlke, because he was so old, feeble and forgetful."
"Could not take care of his business, complained of his mind
and memory, and wished he was dead." " He had to sign
whatever he was told ; did not know what he was signing, and
had to believe whatever Muhlke did."
528 Uhlich v. Muhlke et al. [Sept. T.,
Dissenting opinion by Mr. Justice Thornton.
Language could not depict a more absolute state of depend-
ence and despondency.
In 1867, Muhlke himself said to different persons: "The
old man is not exactly right in his head all the time." " He
is in bed on account of old age." " He did not know what
he was doing." He also admits, in his answer, that Uhlich
was unable, alone, to manage his affairs when he undertook
the agency.
According to the testimony of his family physician, the old
man had been afflicted with chronic bronchitis for several
years before his death. As age approached he had grown
feebler in body and mind. In 1865, when the first deed was
executed, he was eighty-four years of age. In 1867, when the
grand result was brought about, in addition to more infirm
health, a shattered constitution, a vigorous intellect blighted,
the death of his wife, estrangement from the only son capable
of advising him, and increased old age, he was also blind.
Was it right to make a bargaiii and effect a family settle-
ment with regard to an estate worth $1,000,000, with this
semblance of a man, an almost empty casket whence the soul
was about to depart ?
But I do not rely upon the condition of mind, and physical
infirmity, alone, to impeach the deeds. There was a relation
between the parties more controlling in its influence, and po-
tent in its effects, than that of ordinary principal and agent,
and the several deeds must have been the result of this rela-
tion and the influence thereby exerted.
Muhlke, with the money of his principal, built a house on
a lot adjoining his own residence. From this time forward a
constant supervision was exercised over the old man. Eliza-
beth Uhlich says "Muhlke was in every day at Uhlich's."
Muhlke was not only agent, but confidential adviser; was con-
sulted about a family settlement and a proper distribution of
the estate amongst the children. He and his family were con-
stant visitants. The relation was of the most intimate char-
acter. Uhlich and wife were so dependent upon him for
1871.] Uhlich v. Muhlke et al. 529
Dissenting opinion by Mr. Justice Thornton.
money and assistance and counsel, that they were induced to
believe that he had rescued their fortune from almost total
wreck, when it is evident that it was the unparalleled appre-
ciation of property in Chicago which made them one half
million of dollars.
They were old, credulous and trustful, susceptible to flattery,
and so beguiled that no extravagance of language in praise of
Muhlke, seemed to them hyperbole. They called him their
"guardian angel," whom Providence had kindly sent to shield
them from ruin and poverty. The means adopted had the
effect to establish an absolute dependence, and an implicit con-
fidence, almost childlike in its character.
I shall not undertake to fathom the motives of Muhlke. I
desire only to trace the cause, and ascertain the effect, so as to
apply the true principle of law, as I understand it.
Muhlke seemed chary of asking compensation, or demand-
ing a share of the estate, until his power was firmly fixed.
Once he spoke to Vanshoove, and said he had done so much
for the old man, and he had never referred to the subject of
compensation, and made the inquiry: " How much will he
pay me?" This was communicated to the old man. He re-
plied : " Well, I don't know. What does he want ?"
Then, in his answer, Muhlke admits that the subject of
compensation was spoken of several times during the first
four years of the agency, and that Uhlich always postponed
the matter with the remark that he desired the relation of
father and son to exist between them.
Again, in August, 1864, Uhlich said to one Gross, that
Muhlke was the most honest man in Chicago ; that he had
offered to pay him, and he refused to accept anything. The pro-
pitious time had not yet arrived.
In November, 1864, the removal is made to the new house.
It was handsomely fitted up, had gas and hot and cold water,
and was grand in the estimation of these plain people, and so
very different from anything to which they had been accus-
tomed.
34— 61st III.
530 Uhlich v. Muhlke et al. [Sept. T.,
Dissenting opinion by Mr. Justice Thornton.
Why was this removal made? Uhlich said to Lang:
" Muhlke wanted me near him, so that he could counsel with
me all the "time."
Daily intercourse followed; Muhlke had entire control; he
was Uhlich's sole dependence for advice ; all suspicion was
lulled, and the most unbounded confidence existed.
Thus matters continued until in January, 1865, when, as I
gather from Muhlke's answer, Uhlich and wife proposed a
conveyance to him of one-third of their property, valued at
$125,000. He says he was surprised, though flattered, at the
proposal, and the evidence of confidence ; that he was reluctant
to accept; was doubtful ivhether he would gain in money or com-
fort ; was afraid of jealousies and trouble after Uhlich? s deathy
and gave an evasive reply.
Did the proposition at first shock him? Did "coward con-
science " then afflict him? Did honest compunction, and
some regard, then, for the higher right of the children, deter
him? Or was the object to decoy, and grasp more? The
sequel will show.
In March, 1865, the offer was renewed and accepted. Muhl-
ke, in his answer, says the offer was liberal, and " all that, in
reason, could be expected."
He had hoped, then, for a larger gift. What had settled
his doubts and removed his fears of jealousy and trouble?
His efforts to obtain more had failed, then all doubt and fear
vanished, and he gracefully accepted the magnificent donation.
The offer was indeed liberal — one-eighth of a million of dol-
lars for less than four years services. They were not of any
extraordinary character, requiring unusual or arduous labor,
or any outlay of capital, but would have been amply compen-
sated with $3000 or §4000 per annum.
From this time until September, 1867, when Muhlke ob-
tained about one-half of the estate, for no consideration ex-
cept his services for about five years the intimacy continued
unabated, and the confidence undiminished.
1371.] Uhlich v. Muhlke et al. 531
Dissenting opinion by Mr. Justice Thornton.
I will mention a few more incidents which occurred before
the denouement of the drama.
Uhlich was an enthusiast upon the subject of religion.
Muhlke prayed with him and read the Bible to him daily.
The "golden wedding" followed. There were, prominent,
Muhlke, and also Pastor Hartman, the religious adviser of
Uhlich, — the one soon to obtain an immense fortune, the other
laboring for a donation from the rich man to an orphan asy-
lum.
On that occasion, Muhlke presented a handsome bible,
worth twenty-five dollars, and had just before purchased a
carriage, .with Uhlich's money, costing thirteen hundred dol-
lars, for the accommodation of the old man, who thought he
would be beggared by the payment of the small pittance
necessary to ride upon the street cars.
The pastor performed anew the marriage ceremony, and
announced that Uhlich would make a donation to the orphan
asylum.
This wedding must have been a sad and sickening scene to
the old couple. They were infirm, tottering on the brink of
the grave, in the midst of a scene to them so strange, and
such a contrast to anything to which they had been used;
and they must have felt as intruders, amid the gaieties and
festivities, the drinking and feasting, the toasts and speeches.
In June following the wedding in January, Mrs. Uhlich
died; in July, Uhlich made his will, substantially like the sub-
sequent disposition of his estate, and was carried to Muhlke's
house for the- purpose; and in September the several deeds
were executed, by virtue of which the complainant received
only about sixty thousand dollars of this immense estate, and
his children were wholly disregarded, and the agent acquired
an immense fortune.
At this time, Uhlich was almost helpless. Twice he had
to be asked before he made any attempt to make his mark to
his signature, and was assisted for fear he would fall.
532 Uhlich v. Muhlke et al. [Sept. T.,
Dissenting opinion by Mr. Justice Thornton.
There is something suspicious about the deeds themselves.
Those from Uhlich to his sons, Ernst and August, were in
consideration of "love and affection," and designated them
as "sons of Carl G. Uhlich," while the deed to Henry did
not recognize him as a son, but was made as to a stranger.
This old man, imbued, we may hope, with the spirit of
Christian charity, with some lingering affection for his son
Henry ; deprived of the light of heaven, and no longer cheered
by smiles nor intimidated by frowns, and soon to face a fu-
ture fearful to one with anger and passion in his heart, could
not have made this distinction between those of his own
blood, if undue influence had not been exercised over him.
Another singular fact should be mentioned in this connec-
tion. For years prior to the commencement of the agency,
Henry had assisted his father, and been loved and trusted by
him. The estrangement commenced about the beginning of
the agency, and increased with the increase of confidence in
the agent.
But even concede that Henry was ingrate and undutiful,
this could not have destroyed all love and affection for his
children. They, at least, were innocent. ■ They loved their
grandfather ; and he always, to his death, manifested for and
towards them the utmost fondness and attachment.
Why were they disinherited ? Why were they not sharers
in this great wealth? Muhlke can, perhaps, explain the
strange and unnatural act which resulted in their depriva-
tion. I shall not attempt an answer.
I must now, as briefly as I can, notice the law as laid down
in the opinion of the court. It is conceded that, at the time
of the execution of the deeds, the grantee sustained to the
grantor the relation of confidential agent and adviser. The
court then proceeds to combat an ideal position — that the
deeds are ipso facto void — a position never assumed by the
counsel for the complainant, as I understand their argument.
A very proper stricture is then made upon any attempt to de-
prive a man of the right to bestow a gift in remuneration of
1871.] Uhlich v. Mtjhlke et al 533
Dissenting opinion by Mr. Justice Thornton.
important services; for it is said that u kindness and friend-
ship to the distressed would then be under a legal ban."
There is, and should be, no rule of law to check the growth
of the kindlier feelings of our nature ; to prevent the bestowal
of gifts as a reward of merit or a manifestation of friendship;
or to trammel the free and voluntary disposition of property.
The suspicion of the law, however, is always excited when
a gift, greatly disproportionate to services rendered, is made
to a fiduciary. Courts then assume jurisdiction to examine
the case and give relief, "not for the purpose of infringing
the right of alienation, but to secure the full and uninfluenced
enjoyment of it."
The court then announces the rule of law to be, that the
party assailing a deed executed when the fiduciary relation
exists, must prove that the fiduciary abused the confidence
reposed in him, and took advantage of the relation, and until
this is done, the fiduciary is relieved of any explanation.
The following is the language used : " It is difficult^ at all
times, to prove a negative — to prove that a grantee, standing
in this (fiduciary) relation, did not use the influence he possesed
over the grantor to induce the deed — that he did not abuse
the confidence reposed in him. Nor does the rule of law
require it."
Again, it is said : " A gift by one to another, who has been
for many years his confidential agent and adviser, is valid,
unless the party who seeks to set it aside can show that some
advantage was taken by the agent of the relation in which he
stood."
I can not yield my assent to this as the rule of law,
so inconsistent as I regard it with justice and general public
policy. When the relation of agency and active confidence
was so fully proved, the presumptions of law were against the
fairness of the transaction, and the burden of proof was on
the agent to explain and rebut the presumptions. It then
became a case of constructive fraud.
534 Uhlich v. Muhlke et al. [Sept. T.,
Dissenting opinion by Mr. Justice Thornton.
Constructive frauds include acts which, though not origi-
nating in any actual evil intent, tend to impose upon, deceive
and mislead. They will arise out of a fiduciary relation, which
is watched with peculiar jealousy, for it affords the power and
the means of exercising undue influence. The object of the law
is to preserve from temptation, and to deprive acts performed
while the relation exists of all legal protection, unless they
are fair and pure and above the reach of suspicion. The
principle stands independent of any indicia of positive fraud,
and relief will often be given in such cases, in which, but for
the relation, there would be no interference.
"The burden of proof lies, in all cases, upon the party who
fills the position of active confidence, to show that the transac-
tion has been fair/' Kerr on Fraud, Ed. 1872, 151.
The same writer says, on page 386 : "Upon the same prin-
ciple, if it appear that a fiduciary or confidential relation
exist between the parties to a transaction, or if it be estab-
lished by evidence that one of the parties possessed a power
of influence over the other, the burthen of proof lies upon
the party filling the relation of active confidence or possess-
ing the power of influence, as the case may be, to establish,
beyond all reasonable doubt, the perfect fairness and honesty
of the transaction."
The law further requires that the fiduciary must show that
the parties were substantially at arm's length and upon an
equal footing; that the donor had competent and independ-
ent advice; that his conduct Avas not the result of the influ-
ences caused by the relation, and that he acted voluntarily,
deliberately and advisedly.
Has the agent complied with the requirements of the law?
I think not. There was no independent and disinterested
adviser. The counsel who prepared the several deeds and
assisted in their execution, were the counsel of the donee and
not of the donor. The wife was no competent adviser, in the
eye of the law. She was under the same influence as the
husband. Neither was the feeble and aged man upon an
1871.] Uhlich v. Muhlke et al 535
Dissenting opinion by Mr. Justice Thornton.
equal footing with the skilled agent, who was, in the language
of Farwell, "a good business man and had succeeded in every-
thing which he had undertaken/' and who had a temptation
before him which only true virtue could resist.
I have quoted from the same author referred to in the opin-
ion, and it seems to me that the principle contained in the
quotations is a plain one, simply expressed and directly appli-
cable to the facts of this case.
I shall proceed to refer to some of the same adjudged cases,
which, it is said, are unlike this case in its important features.
While the facts may be unlike, the broad, comprehensive
principle in all the cases is identical with the citations from
Kerr.
In Gibson v. Jeyes, 6 Ves. Jr. 266, the relation of attorney
and client existed. Lord Eldon said the parties might con-
tract, but that it resulted from the rule of the court that the
whole onus of the case was thrown upon the attorney. He
then said: "It is asked, where is that rule to be found? I
answer, in that great rule of the court, that he who bargains
in matter of advantage with a person placing confidence in
him, is bound to show that a reasonable use has been made of
that confidence — a rule applying to trustees, attorneys or any-
one else."
In Billage v. Lauthee, 9 Hare, 534, the Vice Chancellor
said : " Where a gift is set up between parties standing in a
confidential relation, the onus of establishing it by proof rests
upon the party who has received the gift." In another part
of the same opinion it is said : "]N"o part of the jurisdiction
of a court is more useful than that which it exercises in
watching and controlling transactions between persons stand-
ing in a relation of confidence to each other. The jurisdiction
is founded on the principle of correcting abuses of confidence,
and ought to be applied, ivhatever may be the nature of the con-
fidence reposed or the relation of the parties between whom it
has subsisted."
536 Uhlich v. Muhlke et al. [Sept. T.,
Dissenting opinion by Mr. Justice Thornton.
In Harrison v. Guest, 6 Gex, Mac. & Gordon, 424, the same
general principle is asserted that, whenever the fiduciary rela-
tion subsists between vendor and purchaser, the burden of
proof is on the party who sets up the transaction against the
person whom he should protect.
In Choice v. Lamotte, 15 Beavan, 239, Sir J. Romilly, in
speaking of the confidential relation, said: "The rule is,
where these relations exist, by means of which a person is
able to exercise a dominion over another, the court will annul
the transaction, unless the person taking the benefit can show that
the transaction was a righteous one."
Apply this rule to Muhlke, and it is a just one; and I am
afraid that he would never succeed in proving the righteous-
Tiess of the transactions with Uhlich.
In Griffiths v. Robins, 3 Madd. 191, there was no technical
fiduciary relation, yet a deed of gift was set aside, because the
donor, an old person, placed confidence in the donee, and the
latter did not show that the deed was the result of free will.
In McCormick v. Malin, 5 Blackf. 509, there was no formal
relation of principal and agent, but confidence was reposed,
'and the court say: "In the technical relations, such as prin-
cipal and agent, client and attorney, etc., equity implies a
confidence; and in all contracts between them, to which the
confidence extends, requires of the party in whom the trust is
reposed the highest degree of good faith. On him rests the
duty of proving that the contract is in every respect fair and
equitable. If he fails in this, it is a constructive fraud," and
the contract must be held invalid.
In a recent case in Missouri (Gadwallader v. West), the
principles of law governing cases of this character was fully
and elaborately discussed. The suit was brought by the heirs
of Gadwallader, deceased, to set aside a deed alleged to have
been obtained by undue influence. The relation of medical
adviser and patient existed. Cadwallader was an old bache-
lor, and Dr. West had resided in the same house with him
1871.] Uhlich v. Muhlke et al. 537
Dissenting opinion by Mr. Justice Thornton.
for thirteen years. There was no proof of any active influ-
ence, and the consideration consisted of ordinary medical
services, supervision of the property and kind care of the
deceased. The value of the property was about fifteen thou-
sand dollars, and the proof showed kindness and attention on
the part of the donee. The court held that the law presumed
the deed to be the result of undue influence, emanating from
the younger and stronger party; that it was prima facie void,
and could not be sustained as a gift, on account of the rela-
tion of confidence.
This court, in its opinion, refer to the case of Butler v.
Haskell, 4 Dessaussure, 651, and deny the principle asserted in
it that an agent is legally incapacitated to purchase the estate
which is the subject of the agency.
Yet this court said in Dennis v. McCagg, 32 111. 429, that
an agent "was disabled from dealing in the matter of his
agency."
In Butler v. Haskell the relation was principal and agent,
and the rule declared was, that where a great advantage is
gained by the agent from the principal, the agent must prove
the transaction perfectly fair and pure.
In Ladd v. Grove, 33 Maryland, 188, it was held that a gift
obtained by a person sustaining a confidential relation to the
donor, is prima facie void, and that the burden of proof is
upon the donee to establish affirmatively that the act was the
free and unbiased will of the donor.
Greenfield's Estate, 14 Penn. Stat. 489, is a very interesting
case, in its facts as well as in the clearness of the. law an-
nounced. The court declared that when the confidence Avas
established, and the benefit to the beneficiary, then arose a
case of constructive fraud; and this peculiarity, withdrawing
it from the operation of ordinary rules, throws upon the bene-
ficiaries the duty of showing expressly that the arrangement
was fair and conscientious, and beyond the reach even of
suspicion.
538 Uhlich v. Muhlke et al. [Sept. T.,
Dissenting opinion by Mr. Justice Thornton.
I think the principles which underlie this case, as developed
by the facts, have been fully heretofore settled by this court.
I shall only refer to one case and the cases therein cited —
Dennis v. McCagg, supra. In that case the relation of princi-
pal and agent existed, and the rule is declared as well estab-
lished, "that trustees and others, sustaining a fiduciary and
confidential relation, can not deal on their own account with
the thing or the persons falling within that trust or relation-
ship. The temptation of self-interest is too powerful and
insinuating to be trusted; and it must be removed by taking
away the right to hold the property purchased."
How applicable is the language to the facts of this case!
Rarely, if ever, has anyone possessed the confidence which
Muhlke had. Rarely, if ever, has anyone been allured by so
great temptation. Apply the rule, and remove the tempta-
tion for the benefit of him and others in the future. ■
In its opinion, the court seem inclined to draw a distinction
between the relation of principal and agent on the one hand,
and attorney and client, and trustee and cestui que trust on the
other. While some distinction is preserved in some of the
adjudged cases — regarding these relations abstractly — there
is no reason for the distinction in this case. Muhlke was not
only sole agent, but was relied on as an intimate friend; was
quasi spiritual adviser; a confidant of family secrets, and was
regarded with adoration as "guardian angel."
In such a case, if ever, the rule of law to which I have
adverted should be applied in all its stringency. A court of
equity, under the circumstances, should act without any re-
gard to positive fraud, upon a principle independent of any
proof of deceit or imposition — a principle arising out of mo-
tives of general public policy, and for the protection of weak-
ness and imbecility, resulting from the infirmities of age and
the trustfulness of a second childhood.
After the most thorough examination, I have not found a
single case — save the opinion in this case — in which, where
1871.] Uhlich v. Muhlke et al. 539
Dissenting opinion by Mr. Justice Thornton.
such unbounded confidence existed, a similar rule has been
recognized.
In cases of trifling benefits or gifts bestowed somewhat
commensurate with the services rendered or the friendship
given, there would not be the same ground for interference,
upon proof of the mere fact of the confidential relation. The
strong presumption of unfairness or undue influence might
not then arise. But when so large an estate is almost given
away, and the ties of nature are severed, suspicion of wrong
can no longer sleep; and when the donor is an infirm and
blind old man, confiding as a child, the suspicion is strength-
ened into absolute conviction.
Another fact should be considered : the inadequacy of the
consideration. The deeds to the agent import a considera-
tion, when in fact there was none except the services rendered.
The answer sets up the conveyance as a gift. This creates a
suspicion, but I shall not pursue the question thus presented.
The services constituted a grossly inadequate consideration,
such as shocks the mind and furnishes a strong presumption
that undue advantage had been taken, when we consider the
weakness and age of the grantor. This presumption the pur-
chaser should remove by proof. Butler v. Haskell, supra;
Cadwallader v. West, supra.
I think the inadequacy was so gross as, in the language of
* Lord Eldon, in Coles v. Trecothick, 9 Yes. Jr. 234, to " shock
the conscience" and is evidence of fraud. Morse v. Royal, 12
Yes. 355.
There is one other fact connected with this transaction to
which reference ought not to be omitted, and which adds to
the bad faith of the arrangement of September, 1867.
At the date of the deed, in 1865, Muhlke and Uhlich en-
tered into a solemn, written agreement, and in consideration
of the deed then made, and as full compensation for all past
and future services during the life of Uhlich, and for acting
as executor in the management of the property after his death,
the agent covenanted to accept the deed. In a little over two
540 Uhlich v. MuHlKe tt al. [Sept. T.,
Dissenting opinion by Mr. Justice Thornton.
years he violated this solemn covenant, and quadrupled his
compensation. If the first transaction was fair, justice would
say that the agent was estopped ; but he could not withstand
the temptation, and grasped the greater gain, which his rela-
tion enabled him to achieve.
I think that the agent has wholly failed to remove the pre-
sumptions of the law, and show the transactions fair, pure,
conscientious, equitable and to be the result of the free and
unbiased will of the donor.
I am, therefore, of opinion that the whole arrangement is
invalid.
Is the complainant estopped from invoking the aid of equi-
ty? He should not be debarred the relief prayed for, on
account of the acceptance of the deed from his father and the
execution of the deed to his brother and Muhlke.
The transaction of September, 1867, was an entirety. Fraud
taints the whole of it. In ordinary cases, equity will undo
the whole transaction, and place the parties in their former
situation. Danberry v. Cockburn, 1 Meriv. 640.
When the deeds to the agent are void, the other instru-
ments forming a part of the scheme are likewise impeached.
They emanated from the same brain ; were nurtured and pro-
duced under the same influences; were for the same illegal
purpose — to grasp possession of the estate.
It can not be said that Henry knew the intent, object and
effect of the deeds. He requested permission to take them,
examine them and consult a lawyer. This reasonable request
was refused ; and Smith, the attorney of the agent, said to
him : " You had better sign ; if you do not sign to-day, you
shall have nothing." It is true, the deeds were read to him,
and he delayed three days before signing; but the mere read-
ing, under the circumstances, was not sufficient. He was an
unprofessional man, and the proof should be satisfactory that
the nature, effect and contents of the deeds were explained to
and perfectly understood by him. Kerr on Fraud, 387.
1871.] Uhlich v. Muhlke et at. 541
Dissenting opinion by Mr. Chief Justice Lawrence.
Besides, Henry was in the presence of a father, prejudiced
against him — it may be justly — and of others who desired and
were laboring for his disinherison. He was not informed of
the arrangement. The plan was concealed from him. Here
was a family settlement, as it is termed, and he, as one of the
family, had not the information upon which to act advisedly
and deliberately.
An estoppel is not favored in law, and might properly be
sustained to prevent the perpetration of a fraud, but not to
encourage a fraud.
There should be no confirmation of a transaction so incon-
sistent with justice, so unnatural and so presumptive of fraud.
If so, it would be a ratification of an act which should never
have been performed.
I think the decree should be reversed, and the relief asked
granted.
Mr. Chief Justice Lawrence : I fully concur in the dis-
senting opinion of Mr. Justice Thornton. In my judgment,
the facts disclosed in this record show a gross breach of the
obligations imposed by a fiduciary relation.
Mr. Justice McAllister, having been of counsel in the
cause originally, took no part in the decision upon the rehear-
ing.
INDEX.
ACCOUNTING.
Of an error therein.
1. Where there is a question whether parties to an action have
accounted and agreed upon a balance due, it is not error for the court,
when the evidence warrants it, to instruct the jury that, if any error
was committed in such settlement, accidental or otherwise, such ac-
counting is not binding upon the party against whom it is made,
Eddie v. Eddie, 134.
ACTIONS.
Action by attorney for services.
Where Tie has no license. See ATTORNEY AT LAW, 1.
Collection of taxes.
Of the remedy therefor. See TAXES, 4.
Between a corporation and its members,
Of the right of a person to sue a corporation of which he is a member.
See CORPORATIONS, 1, 2, 3.
Sale of personalty— failure of consideration.
Remedy in respect thereto. See ASSUMPSIT, 1.
To recover back money voluntarily paid. See PAYMENT, 1.
ADMINISTRATION OF ESTATES.
Costs on presentation of claims.
Who shall be liable. See COSTS, 1.
ADMISSIONS. See EVIDENCE, 6.
544 INDEX.
AGENCY.
Principal and agent.
1. Of dealings between them — and herein, of tlie burden of proof in
relation to tlie fairness of the transaction. Where a conveyance is made
to the confidential agent and adviser of the grantor, it is not void mere-
ly by reason of the relation thus existing between the grantor and the
grantee. Uhlich v. Muhllce, et al. 499.
2. Nor does it devolve upon the grantee, standing in this relation,
to prove, in the first instance, that he did not use the influence he
possessed over the grantor to induce the deed — that he did not abuse
the confidence reposed in him. Ibid. 499.
3. A confidential relation gives cause of suspicion, and the circum-
stances under which a deed is made during such a relation, must be
closely scanned; and if a reasonable suspicion exists that confidence
has been abused where reposed, the deed should be set aside. Ibid.
499.
4. But the suspicion may be removed, and to render such a transac-
tion valid, it is only necessary to show that the other party had com-
petent and disinterested advice, or, that he performed the act, or
entered into the transaction, voluntarily, deliberately and advisedly,
knowing its nature and effect, and that his consent was not obtained
by reason of the power and influence to which the relation might be
supposed to give rise. Ibid. 499.
5. A gift by one to another, who has been for many years his con-
fidential agent and adviser, is valid, unless the party who seeks to set
it aside can show that some advantage was taken by the, agent of the
relation in which he stood to the donor. Ibid. 499.
Where one is employed for a certain time.
6. Rights of the employee when prevented by the employer from serving
Us full time. See MEASURE OF DAM. . GES, 1, 2.
AGISTMENT.
Diligence required of an agister.
1. A person receiving a horse to pasture for hire is only bound to
tlie use of reasonable care of the property, and only becomes liable
for loss or injury to such property where there is a want of such care.
Mansfield v. Cole, 191.
2. Where the owner of a horse places it in the hands of an agister,
and the owner knows the animal to be breachy, if he desires to have
more than ordinary care bestowed in keeping the animal, he should
contract for such superior diligence. Ibid. 191.
INDEX. 545
AGRICULTURAL SOCIETY.
Which op two entitled to State bounty.
1. Under the act of May 18, 1857, and the subsequent act of 1861,
providing for the payment of $100 by the State to count}'' agricultural
societies, the society first duly organized is entitled to the bounty.
Iroquois Agricultural Society v. Bates and Lippincott, 490.
2. Where two agricultural societies organized in the same county,
each applied for the State bounty, and the board of supervisors de-
cided that the society last organized was entitled to it, upon which the
auditor acted with notice of the facts: Held, on application for man-
damus by the older society, that the petitioner was entitled to the
bounty, and that the action of the board of supervisors could not affect
the question. Ibid. 490.
ALIMONY. See DIVORCE, 2.
ALLEGATIONS AND PROOFS. See PLEADING AND EVIDENCE,
1 to 4.
AMBOY, COURT OF COMMON PLEAS OF.
Its territorial jurisdiction. See JURISDICTION, 5.
AMENDMENTS.
Amendment op pleadings.
1. In a suit in chancery to enforce a mechanic's lien, after the
cause was submitted to the jury, it being discovered that the replication
which had been filed transposed the parties, the courb permitted a for-
mal and proper replication to be filed : Held, that such action of the
court was not error. Buckley v. BouteUier, 293.
Amendment op bill in chancery.
2. Effect thereof upon the proof in respect to the subject of the amend-
ment. See PLEADING AND EVIDENCE, 4.
Amendment of decree.
3. At subsequent term. Upon the rendering of a final decree in a
chancery suit, one of the defendants took an appeal therefrom to this
court. After the record was filed in this court, and errors assigned
Ihereon, at the instance of appellees, complainants below, the decree
was amended at a subsequent term to the one at which it was ren-
dered, so as to exclude appellant from its force : Held, such practice
was irregular, and should not have been permitted, and this court
could only decide on the original record. lUinois Land and.Loan Co.
V. McCormick et al. 322.
35 — 61st III.
546 INDEX.
APPEALS AND WRITS OF ERROR.
Appeal from a county court.
1. In what manner perfected. Where the county court rendered a
judgment, and the defendant filed in that court an appeal bond which
was approved by the county judge before the expiration of twenty
days: Held, the appeal was perfected, although the bond was not sent
to the court to which the appeal was taken until after that time. An
appeal taken from the probate court may be perfected in the same
manner that appeals may be from justices of the peace. Beardsley v.
Hill, 354.
2. Appeal bond by an administrator — whether his individual bond.
Where an administrator appeals, and the condition of the bond recites
that he is administrator, and at the end of his signature to the bond he
adds "Adm'r," the court will not bold this is an individual bond of
the administrator. Ibid. 354.
3. When to object to defective appeal bond. A defect in the condition
of such a bond must be objected to in the court to which the appeal is
taken, to be availing. Such objection comes too late when made for
the first time in this court. Ibid. 354.
Stare decisis.
4. Where a case has been twice before this court, and all of the
questions decided in the same wa}r on both trials, when the record is
brought here a third time on the same questions, the court will refuse
to again consider the errors assigned. The case must be considered as
determined by the former adjudications, and the questions can not be
opened for re-discussion. Cook v. Norton et al. 285.
APPEARANCE.
Cures defective service of process.
1. Where the record shows the appearance of a defendant by attor-
ney, and the filing of a plea to the merits, and the attorney was em-
ployed in the case at a former term, the defendant will be concluded
by the action of his attorney, and all defects and irregularities in the
service will be cured. O'Brien v. Haynes, 494.
ARBITRATIONS AND AWARDS.
Certainty in an award.
1. As a general principle, an award must be certain in itself, but
certainty to a common intent is all that is required. The award must
clearly establish the rights of the parties to the thing or matter in con-
troversy, but parol evidence is always resorted to for the purpose of
identifying the matter or thing. Burrows v. Guthrie et al. 70.
INDEX. 547
ARBITRATIONS AND AWARDS.
Certainty in an award. Continued.
2. If the award settles the rights of the parties, and can be ren-
dered certain by reference to accounts or other documentary evidence,
it will be sustained. Burrows v. Guthrie et al. 70.
3. As, where an award makes reference to an account, the account
may be properly referred to for the purpose of ascertaining the mean-
ing of or explaining the award. Ibid. 70.
4. The award is to be judged of according to a common intent con-
sistent with fair and reasonable presumption, and if it is so far certain
as, from the nature of the subject of it, could be reasonably expected,
and the directions of the arbitrators can, with tolerable ease, be re-
duced to a certainty, as by reference to any written document or the
inspection of any particular thing, house or land, it will not be im-
peachable on the ground of uncertainty. Ibid. 70.
5. W/ten objection for uncertainty should he raised. The objection
that an award is not certain or final should be made before judgment
is pronounced thereon. Ibid. 70.
Estoppel — denial of validity of award.
6. By acting under it. Where the affairs of a partnership had been
submitted to arbitration, and after judgment was pronounced thereon,
and at a subsequent term of the court, one of the parties acted under
the award by entering a motion for a rule on the other party, requir-
ing the latter to make and file under oath a detailed and itemized state-
ment of all his receipts and disbursements as receiver and trustee un-
der and by virtue of the award, it was held, that such party was there-
by estopped from thereafter questioning the validity of the award-
Ibid. 70.
Conclusiveness of judgment on award.
7. The judgment rendered upon an award is conclusive of its valid-
ity unless impeached for fraud. Ibid. 70.
Remedy to enforce compliance.
8. By attachment for contempt. After judgment had been pro-
nounced upon an award, and one of the parties thereafter refused to
comply with its terms, it was 7ield, that at a subsequent term the court
might properly rule such party to comply with the award within the
time fixed by the court, and on his failure so to do, to consider him as
in contempt, to be dealt with accordingly. Ibid. 70.
Omission to give notice of the hearing.
9. When it may be questioned. In a suit in chancery to enjoin the
collection of a judgment obtained upon an award, it was complained
548 INDEX.
ARBITRATIONS AND AWARDS.
Omission to give notice of the hearing. Continued.
that the 'arbitrator gave no notice to the parties of the hearing before
hini: Held, that as the fact of such omission must have been known
to the complainant on the trial of the cause on the award, and could
have been then determined, equity could not relieve against it. Hub-
lard v. Hubbard et al. 228.
Interest op an arbitrator.
10. If known to the party objecting to the award. The objeet to be
determined by the arbitration was the balance due from complainant,
as purchaser of a certain lot of ground, to his grantor, and it was fur-
ther complained that the arbitrator had an interest in the subject mat-
ter submitted to him. It appeared the arbitrator was only interested
in this way : The money which the grantor had received in part pay-
ment for the land was not paid by complainant directly to him, but
was loaned to the arbitrator and by him advanced to the grantor:
Held, as complainant well knew of such interest of the arbitrator when
he chose to submit the matter in dispute to him, he could not be al-
lowed afterwards to set up such interest to defeat the award. Ibid.
228.
Must be a proper submission.
11. After issue, the 'parties to a suit by stipulation referred the
cause to a referee to hear the evidence and try the case, and provided
therein that judgment should be entered on his finding as on the find-
ing of the court. The court heard no evidence, and judgment was
rendered upon the mere report of the referee of a gross sum. The
referee was not sworn, nor were the witnesses: Held, that as there
was no proper submission according to the statute, the court had no
jurisdiction to render judgment upon the report. Gregory v. Healy
et al. 470.
ARREST OF JUDGMENT.
Defective declaration.
1. Where a declaration fails entirely to show any right in the
plaintiff to maintain the action, as where the suit is upon an instru-
ment payable to a third party, and no indorsement or transfer is
averred, a motion in arrest of judgment should prevail. Commercial
Insurance Co. v. Treasury Bank, 482.
ASSIGNMENT.
Assignment of mortgage.
1. To indemnify bail. Parties living in this State and executing a
mortgage to be used in the State of Ohio, to indemnify any person who
INDEX. 549
ASSIGNMENT. Assignment of mortgage. Continued.
might become bail for a person in. that State, which is assigned to
such bail, is valid, and may be enforced to the extent of loss by the
bail on the recognizance. Stevens et al. v. Hay, Admr. 399.
2. Where a person became such bail on the assurance that the
note and mortgage were assigned to him as an indemnity, and after
his death these instruments properly assigned to him are found
amongst the papers of the attorney who procured him to become bail,
and who had also died, the presumption is, that the assignment was
properly made. Ibid. 399.
Assignment of policy of insurance.
3. In order to give a right of action on a policy of insurance for a
a loss, to an assignee in his name, the insurance company and the as-
sured must act together in effecting an indorsement. Commercial In-
surance Co. v. Treasury Bank, 482.
Assignment after maturity.
4. Subject to payments made to the payee. See PAYMENT, 2.
ASSUMPSIT.
Whether the action will lie.
1. In an action of assumpsit, the plaintiff sought to recover the
value of a horse, buggy and harness, delivered to the defendants upon
a contract under seal by which they agreed, upon certain conditions,
to convey to the plaintiff a certain lot of ground. The plaintiff based
his action upon the theory that defendants had refused to perform
their contract : Held, that, in order to maintain assumpsit, it would be
necessary to prove the sale of the horse, buggy and harness, by the
defendants, or their conversion in some way into money or money's
worth, and in the absence of such proof the plaintiff should resort to
covenant on the sealed instrument to recover his damages, or, treat-
ing the contract as rescinded, trover or replevin for the property, after
demand made. Johnston et al. v. Salisbury, 316.
ATTACHMENT.
No RETURN AS TO PROPERTY.
1. Service on garnishees — waiver of irregularity. Where the return
. of the sheriff failed to show that he was unable to find property to sat-
isfy a writ of attachment, but was regularly served on a number of
garnishees : Held, that whilst it would have been more regular to
have returned nulla bona, and although the garnishees might have
quashed the return, if not amended, the court, nevertheless, acquired
550 ItfDEX.
ATTACHMENT. No return as to property. Continued.
jurisdiction, and the irregularity is waived by answering interrogato-
ries. A levy on property, or service of a garnishee, is necessary to
confer jurisdiction in a suit by attachment. Truitt v. Griffin, 26.
Judgment on constructive notice.
2. Effect of sale thereunder, as a satisfaction. Whatever may be the
legal effect of a judgment in attachment on constructive notice, a sale
of property thereunder, for only a portion of the debt, can not be
treated as a satisfaction of the claim upon which the judgment is
based, beyond the amount of the sale. Gibbons v. Bressler, 110.
Jurisdiction — when conferred.
3. Effect of error. An affidavit filed, a bond given, an attachment
issued and levied, publication made and proof thereof, confer jurisdic-
tion upon the court; and although the court may have erred in ap-
plying the law to the facts, still the judgment is not void. Ibid. 110.
Whether judgment conclusive.
4. As regards third persons. There is no doubt a judgment in
attachment without service or appearance will protect strangers to
the record in rights acquired by purchase of the property under it.
Bliss et al. v. Heasty et al. 338.
5. As between the parties, in suit for wrongfully suing out the writ.
But the plaintiff and the sureties on his bond are liable to the defend-
ant for all damage he sustains by the wrongful suing out of the writ,
and this, too, whether or not the suit progresses to a judgment. Ibid.
338.
6. Whether- a bar to another suit to recover an unsatisfied balance.
Where a judgment in rem is recovered in a proceeding by attachment,
there being no personal service or appearance, and the property levied
on is insufficient to pay it, the plaintiff, to recover the balance, must sue
on the original indebtedness; and in such a suit the defendant may
setup any defense he could had the attachment proceeding never been
instituted. In such a case, the defendant is not concluded by the
judgment in attachment, and it can only be pleaded in bar to the ex-
tent of the satisfaction had under it. Ibid. 338.
7. Where there is service or appearance by the defendant, then the
case would probably be entirely different. Ibid. 338.
ATTORNEY AT LAW.
Recovery for services.
1. Without license to practice. Where a party, representing him-
self to be an attorney, was employed by another as such, and it ap-
peared he had no license to practice as an attorney, and in all he did
INDEX. 551
ATTORNEY AT LAW. Recovery for services. Continued.
acted as a regularly licensed attorney, it was held, he could not re-
cover for the services so rendered. Tedrick et al. v. Hiner, 189.
Authority to discharge judgment.
2. Where desperate claims are put into the hands of an attorney
for collection, with information that the defendant can not pay any-
thing and that the plaintiffs had offered to take sixty cents on the dol-
lar, and with instructions to take the claims and do the best he can
with them, but giving him no specific directions, such instructions
fully authorize the attorney, after judgment, and execution returned
no property found, to settle the claims and discharge the judgment
upon the receipt of fifty cents on the dollar. Vickery v. McClellan
et al. 311.
-3. Ratification unnecessary. Although an attorney, by virtue of
his general character as such, has no power to discharge his client's
judgment by receiving a less amount or anything but money in satis-
faction thereof, yet, where he has a special authority so to do, and
does it, no subsequent ratification is necessary. Ibid. 311.
Misconduct in office.
4. This court is not constituted a censor of morals, so as to require
it to pronounce upon, the style of manners and conversation which
becomes a member of the bar. The People v. Palmer, 255.
5. But this court has the power, under the statute, at discretion, to
strike the name of any attorney or counselor at law from the roll, for
mal-conduct in office. Ibid. 255.
6. The statute further makes it the duty of the court, whenever it
shall be made to appear that any attorney has neglected, upon demand
and tender of reasonable fees, to pay over or deliver money or prop-
erty to his client, to direct that the name of such attorney shall be
stricken from the roll of attorneys. Ibid. 225.
7. At whose instance the name of an attorney may be stricken from the
roll. The statute which authorizes "any person interested1' to apply
for a rule upon an attorney who has failed to pay over money col-
lected, to show cause why his name should not be stricken from the
roll, should not receive the narrow construction that the person who
may make the application must be a creditor. The members of the
profession, and other persons besides creditors, have a deep interest in
the purity of those who sustain such important relations to the pub-
lic. Ibid. 255.
BAIL. See CRIMINAL LAW, 1, 2.
552 INDEX.
BAILMENT.
Degree of care required of an agister. See AGISTMENT, 1, 2.
BANKRUPTCY.
Chattel mortgage.
1. Whether affected by the bankrupt law. Under the bankrupt law,
a chattel mortgage remains unaffected by the application of the mort-
gagor for, and his obtaining a discbarge in bankruptcy; and, notwith-
standing such bankruptcy, the mortgagee, when the debt falls due,
may take possession of the mortgaged property as he could of his own
temporarily in the possession of the bankrupt. The assignee in bank-
ruptcy only takes the equity of redemption. The lien and the right
to assert it remain unimpaired. Bentley v. Wells, 59.
2. Where a person, unable to pay his debts, borrows money and
gives a chattel mortgage to secure its payment, although the mort-
gagee knows the fact, thatwilj not invalidate the mortgage. To have
that effect, the mortgagee must know that the mortgagor was execu-
ting it in contemplation of bankruptcy, and with a view to prevent its
going into the hands of the assignee, and from being distributed
among his creditors. This is the only reasonable and just construc-
tion that can be given to the bankrupt law. Ibid. 59.
BILLS OF EXCEPTIONS. See EXCEPTIONS AND BILLS OF
EXCEPTIONS, 1.
BILL OF PARTICULARS. See PRACTICE, 4.
BONDS.
Appeal bond by an administrator.
When regarded as his individual bond. See APPEALS AND WRITS
OF ERROR, 2.
BURDEN OF PROOF. See CARRIERS, 3.
CARRIERS.
Restricting liability by contract.
1. To what extent alloicable, and whether the shipper assents thereto.
Where a common currier inserts in the shipping receipt a condition
that the company will not be liable for loss beyond a specified sum,
being less than the value of the goods shipped : Held, that such stip-
ulation does not release the common carrier unless it appears that the
INDEX. 553
CARRIERS. Restricting liability by contract. Continued.
shipper knew of, and assented to, the limitation. Adams Express Co.
v. Stettaners, 184.
2. Where the receipt contains sucli a stipulation, and that the car-
rier shall only be held liable for gross negligence, and it is assented to
by the shipper, still the carrier would be bound for the use of reason-
'able care. Common carriers can not, by contract, excuse themselves
from reasonable care and diligence. Ibid 184.
LOSS OF GOODS — BURDEN OF PROOF.
3. Where a person sends goods by an express company and they
fail to arrive at their destination, that raises against the company the
presumption of the want of ordinary care. The company has it within
their power to trace the goods and discover where they were lost,
Avhilst it is not so with the shipper, and hence the burden is upon the
carrier f.o show that he has used reasonable care, notwithstanding he
may have stipulated he was only to be held liable for gross negligence.
Ibid. 184.
CATTLE RUNNING AT LARGE.
Under act of 1867.
In an action of replevin for the alleged wrongful taking and deten-
tion by the defendant of ninety head of cattle belonging to the plain-
tiff, the defendant justified the taking and detention of the cattle under
the act of March 7, 1867, entitled "An act to prevent domestic animals
from running at large in the counties of Monroe, St. Clair, and other
counties." It appeared the plaintiff's cattle were in the field of one
Dement, with the consent of the latter, and that they passed thence
upon the premises of the defendant, through a breach in the partition
fence made by the cattle of the defendant, where they were taken up
by him : Held, the breach thus made, it was the duty of the defendant
to repair, and under such circumstances he had no more right to take
up and hold the plaintiff's cattle under the act mentioned, thus tres-
passing on his land, than he would have had if the breach in the fence
had been made by the defendant himself instead of b}r his cattle.
Alcers v. Geoi'ge, 376.
CERTIORARI.
Under the statute.
Where a petition for a certiorari shows no reason why the party
could not have taken an appeal from the judgment of a justice of the
peace, itfis not error to dismiss the certiorari on motion. Doan v. Sib-
bit 485.
554 INDEX.
CHANCERY.
Pleading — of the bill.
1. Description of the character in which the complainants sue. It is
absolutely necessary that such a convenient degree of certainty should
be adopted in the structure of bills in equity as will serve to give the
defendant full information of the case which he is called upon to an-
swer. The character in which the complainants sue is an essential
element of the case, and they will not be allowed to so describe their
character as to induce the defendant to suppose that they sue in autre
droit, and then upon the hearing insist that they have sued as well in
their own individual rights. Lawson et al. v. Kolbenson et al. 405.
2. Where the complainants, after setting out their individual names
state the character in which they sue, thus: "as trustees of the Nor-
wegian Evangelical Lutheran Church of Chicago, in their own right
and in behalf of the persons hereinafter mentioned, whom, as trustees
they represent," they describe the character in which they sue in the
proper language to express that they sue in autre droit. It is as trus-
tees, etc., and this is an express limitation to the character thus indi-
cated. Ibid. 405.
3. In this case, the words "in their own right" injected into the de-
scription of their character, are not equivalent to the words "in their
own individual rights,'" but when considered with reference to the con-
text, must be taken to mean in their own right as such trustees. Ibid.
405.
Questioning plea in chancery.
4. Of the mode thereof. The question as to the sufficiency of a plea,
in chancery, should not be raised by demurrer, but the plea should be
set down for argument. Dixon v. Dixon, 324.
Fraudulent abuse op process.
5. Setting aside a sale on attachment— for fraud. If a person, know-
ing another is not indebted to him, makes a false affidavit, procures a
writ of attachment, has it, levied on lands of the defendant, obtains a
judgment and execution, buys in the land and obtains a sheriff's deed,
a court of equity will set aside the sale on such facts being made to
appear, on the ground of a fraudulent abuse of the process of the court.
Gibbons v. Bressler, 110.
Erroneous judgment.
6. Will not be corrected in chancery. Where a judgment is not void,
but only erroneous, a court of equity Mill not set it aside, although it
might be reversed on error. It is not the province of a court of equity
to correct errors of courts of law. Ibid. 110.
INDEX. 555
CHANCERY. Continued.
PREVENTING ABUSE OP A TRUST.
7. Where there is a conspiracy hy the holder of a note secured by
trust deed, to take advantage of the maker of the deed, and, by au
abuse of the trust, wrongfully to deprive him of his equity of redemp-
tion, the right of the latter to relief rests upon the clear and solid
ground of equitable jurisdiction over trusts, for the control of all fraud-
ulent abuses of them, unless barred by the paramount claims of a bona
fide purchaser for valuable consideration, and without notice. Flint
v. Lewis, 299.
Specific performance.
8. Of a contract for sale of chattels. Courts of equity will, as a gen-
eral rule, in all proper cases, enforce contracts relating to the sale of
lauds, but not in regard to sales of personal chattels. But there are
exceptions to, or limitations of, the rule, as cases may arise where a
contract for the sale of chattels will be enforced. Parker v. Garrison
et al. 250.
Decree entered by consent.
9. How far conclusive. A bill was filed for a partition among sev-
eral tenants in common, and to set aside a sale of the land by an ad-
ministrator, and the court, on the hearing, rendered an interlocutory
decree setting aside the sale and decreeing that a partition be made,
and referring the case to the master, to take proof of the use and occu-
pation, payment of taxes, and improvements made by the purchaser at
the administrator's sale, the master reported, and the court rendered a
final decree reaffirming the former decree and reciting that the pur-
chaser from the administrator consented to the rendering of the inter-
locutory decree : the court also stated the account, and decreed the
amount the tenants in common should pay the purchaser at the admin-
istrator's sale: Held, that the purchaser could not question the fact
that he assented to the interlocutory decree. Where a decree appears,
from the recitals, to be assented to, it is not necessary that evidence of
the consent should be preserved in the record If not satisfactory, the
party dissatisfied should preserve the evidence on which the recital is
based, and then it can be reviewed. Holderman v. Graham et al. 359.
Estimating rents and improvements.
10. Of the rule. In such a case, where the master is required to
ascertain the rental value of a piece of land for a long period of time,
he should receive proof as to the rental value for each year, and not a
mere average ; as interest must be computed on the rents, the value for
each year should appear, and it was error for the court to average
the interest on the rents. And where an occupant was charged with
rents, and allowed for improvements, and the fences on his own land
afforded the means for enclosing the land on which he was charged
556 • INDEX.
CHANCERY. Estimating rents and improvements. Continued.
rents, it was error to charge full rents for the land and allow nothing
for the use of his fences. Holderman v. Graham et al. 359.
11. It would not, in such a case, be proper to allow for improve-
ments made after the account was ordered, even if the occupant made
them under the supposition that they were placed on his own land, but
in which he was mistaken. Ibid. 359.
Foreclosure of a chattel mortgage.
12. In chancery. See MORTGAGES, 8.
Preserving evidence in chancery.
13. WJiere decree recites that it is entered oy consent, evidence of con-
sent need not be preserved. See this title, 9.
CHATTEL MORTGAGES. See MORTGAGES, 1 to 9.
CHURCHES AND CHURCH PROPERTY.
Op the doctrine taught.
1. As effecting the title to property. Where a deed is to certain per-
sons as trustees of a church by the then name of the Scandinavian
Evangelical Lutheran Church of Chicago, and the trust was expressed
thus: "For the erection of a house for public religious worship and
none other, without the consent of the parties of the first part," it
shows that the intention of the parties is, that the premises are to be
held in trust for the erection and use of a house for public religious
worship, under the ministrations of an Evangelical Lutheran Church,
as its essential doctrines and tenets are then promulgated and known,
and so long as this is done courts of equity do not interfere on account
of inaccuracies of expression or inappropriate figures of speech, nor
for departures from mathematical exactness in the language employed
in inculcating the tenets of the donors. There must be a real, sub-
stantial departure from the purposes of the trust, such an one as
amounts to a perversion* of it, to authorize the exercise of equitable
jurisdiction in granting relief. Lawson et al. v. Kclbenson et al. 405.
Independence of church organization.
2. As respects its connection with a synod. Where a church has a
complete legal existence, self-governing in character, before it unites
with any synod, and might continue on as it began without being
connected with any, and while thus independent acquires a convey-
ance of lands, and afterwards, by a majority vote of the church, con-
nects and disconnects itself with several synods successively, always
maintaining and observing the doctrines, tenets and symbols of the
original church, and there is a clear preponderance of testimony that,
INDEX. 557
CHURCHES AND CHURCH PROPERTY.
Independence of church organization. Continued.
under the laws, usages and customs of that church, it is competent for
a majority of the members to sever the connection with the synod at
any time, such a majority loses none of its rights in the property of
the church by so doing. Lawson et al. v. Kolbenson et al. 405.
3. Pastor under sentence. Where the synod of A, to which such a
church then belonged, met on the 20th of March and entered on the
trial of certain charges against its pastor, and after a session of three
days adjourned to the 24th of April without concluding the trial, and
on the 18th of April such church, by vote of a majority of its mem-
bers, duly withdrew from* all connection with the synod of A, and
afterwards said synod, meeting on the 24th of April, continued the
trial, concluding on the 27th, with a sentence that said pastor be ex-
cluded from that synod and from the ministry in the churches belong-
ing to it, such a sentence does not affect this church which did not
belong to it. Ibid. 405.
COMMISSION MERCHANT.
Op a demand by a consignor.
1. Construction of act of 1869. The act of March 4, 1869, entitled
an act for the protection of consignors of fruit, grain, flour, etc., to be
sold on commission, which provides that any warehouseman, storage,
forwarding or commission merchant who, having converted to his own
use the proceeds or profits arising from the sale of any goods other-
wise than as instructed by the consignor of the goods, on demand of
the consignor fails to deliver over the proceeds or profits of such goods
after deducting the usual per cent on sales as commissions, shall be
guilty of a misdemeanor, etc., being a penal statute, must receive a
strict construction, and an actual demand to be made by the consignor
upon the commission merchant is an indispensable pre-requisite to a
conviction under it. Wright v. The People, 882.
2. Sufficiency of demand. In such a prosecution the complaining
witness testified that, when he went to the place of the accused, the
latter said : "I know what you have come for, but it is impossible for
me to pay you anything now." The witness stated that the accused
knew well enough what he had come for, and this was all the demand
he claimed to have been made: Held, that, while in a civil cause
where a demand was necessary, such evidence might be sufficient for
a jury to find a waiver, yet, in this action, it was insufficient. The
demand should be made in such a manner as to fairty apprise the mer-
chant that he would be subject to the penalties of the statute if he
failed to comply. Ibid. 382.
558 INDEX.
CONFESSION OF JUDGMENT. See JUDGMENTS, 3, 4, 5.
CONSENT.
Decree entered by consent.
How far conclusive. See CHANCERY, 9.
CONSIDERATION.
Whether sufficient.
1. As respects a conveyance from principal to agent. A person own-
ing a large and valuable property in the city of Chicago, obtained the
services of another as agent and confidential adviser, in the manage-
ment of the estate. After four years' service of an important charac-
ter, to the principal, for which the agent had received no compensa-
tion, the former conveyed to the latter an undivided one-third of the
property, of the value of about $125,000, the deed reciting a considera-
tion of $12,000, and "for other good and valuable considerations."
There was no money paid by the grantee, the only consideration for
the conveyance being such services as he had rendered and such as
he agreed to render, in the matter of the management of the estate.
At the time of the conveyance there was an incumbrance upon the
entire property, amounting to $36,000, the conveyance being made
subject to one-third of the same. Simultaneously with the execution
of the deed, the grantee entered into a covenant to continue his ser-
vices in the matter of the estate committed to his care, even after the
death of his grantor ; and if he himself should die, he covenanted that
his successors after him, at the expense of his estate, should render
them. At the time of the transaction the grantee was engaged in a
large and remunerative mercantile business, by which. he had already
acquired property estimated at $50,000; and soon after he made the
covenant mentioned he closed his connection with that business in
order that he might bestow his entire time upon the business of his
employer. Upon the objection in a suit by one of the children and
devisees of the grantor, that the consideration for the deed was so
grossly inadequate that a court of equity ought to set it aside as
fraudulent, it was held, there was adequate consideration for the deed,
and it was valid. Uldich v. Muhlke et al. 499
Failure of consideration.
2. Subscription to stock of railroad — sale of the road. A plea that
avers that a subscription to the stock of a railroad company, to be
paid when the road should be completed between certain points, and,
on payment, the subscriber was to receive a certificate for a like
amount of stock; and avers that the company had sold the road to
another corporation, which was operating it: Held, the plea was bad
INDEX. 559
CONSIDERATION". Failure of consideration. Continued.
on demurrer, as, if the charter authorized the sale, the party subscrib-
ing must have known that the power could be exercised; if there was
no such power conferred, then the sale was void, and on payment and
receipt of his certificate, he would hold his stock unimpaired, and
there was not a failure of consideration. Hays v. Ottawa, Oswego and
Fox River Valley Railroad Co. 422.
3. Lease of the road. Where a plea averred the same facts, except
that the company had leased the road : Held, if there was power to
lease, then the subscriber must have known, when he subscribed, that
the power might be exercised, and if there was no such power, then
the attempt to lease would not affect the stock, as the lease would be
void, and those running the road would be the mere agents of the
original company. Such a plea presents no defense. Ibid. 422.
CONSTITUTIONAL LAW.
Curative legislation.
1. Its effect upon a void election. Where an election held by a town,
in respect to a subscription to the stock of a railroad, was void, because
it undertook to authorize a subscription in excess of what the law pre-
scribed, the legislature has no power, under the constitution, to pass a
law rendering the election and subscription valid. It would be to
compel a municipal corporation to incur a debt for purely a local mu-
nicipal purpose. Marshall et al. v. Silliman et al. 218.
2. The legislature has no power to authorize a supervisor and town
clerk to create a corporate debt without the consent of the people, as
the power to impose taxes or to create a corporate debt is not incident
to their offices. But even if such power existed under a curative act
of this character, it will not be inferred that they exercised a discretion
in making the subscription, but that they felt they were bound to do
so under the requirements of the act. It gave those officers no choice
to act or not, but declared the election valid and binding on the town-
ship, and declared the subscription might be collected. Ibid. 218.
Municipal subscription to stock of railroads.
Power of tlie legislature to grant authority therefor, under constitution
of 1848. See SUBSCRIPTION, 1.
Taking private property for public use. See EMINENT DO-
MAIN.
Of the title of special or local laws.
Under constitution of 1848. See STATUTES, 1.
560 INDEX.
CONSTITUTIONAL LAW. Continued.
Of unreasonable searches op one's premises.
Enforcing an anti-liquor license. See SPIRITUOUS LIQUORS, 9.
CONTEMPT.
Refusal to comply with judgment on award.
Remedy by attachment for contempt. See ARBITRATIONS AND
AWARDS, 8.
Disobedience to an injunction.
Whetlier a contempt of court. See INJUNCTIONS, 6, 7, 8.
CONTRACTS.
Excuse for non-performance.
1. What will excuse a party from the performance of his agreement.
Where a vessel is chartered for a specified time, at a fixed price, under
a written contract, and a bond with security is given, conditioned for
the payment of the price and for the return of the vessel at the time
named "in as tight, staunch and good condition as she now is, reason-
able wear and tear excepted," and before the time for her return the
vessel is destroyed in a gale by the "act of God," through no fault or
negligence whatever, the bailee and his surety are still liable upon their
bond, and must respond in damages to the owner of the vessel for not
returning her according to the terms of their obligation. ButiY seems
that if the liability of the bailee had rested upon the charter alone,
without the bond to return, the rule might be different. Nor would
the mere fact that, in pursuance of the charter, the vessel had been
insured for the benefit of the owner, constitute any defense to an action
on such a bond unless it were also shown that he had received the
insurance money, and was therefore not entitled to a second satisfac-
tion for the loss of his property. Steele et al. v. Buck, 343.
2. The principle underlying all the English and American authori-
ties on this subject is, that a party must perform his contract, and if
loss occurs by inevitable accident, the law will let it rest upon the
party who has contracted that he will bear it. He is an insurer to the
extent of making good the loss. The rule is just, and founded in rea-
son ; for, it" he did not intend to bear the loss, it is natural to presume
that he would have stipulated against it. And again, where one of
two innocent persons must sustain a loss, the law casts the burden upon
the party who agreed to sustain it, or, rather, leaves it where the par-
ties, by their agreement, placed it. Ibid. 343.
INDEX. 561
CONTRACTS. Excuse for non-performance. Continued.
3. Exceptions to this rule have been allowed in recognizances,
where, if the person die, the liability of the surety is discharged; and
in an obligation to deliver a living animal, where, if it die, the obligor
is excused ; and also in cases where a party agrees to render personal
service, to work for a stipulated period, or to do a certain class of work
that can not be performed by another, and dies before the contract is
completed. In all these cases the obligation is discharged. Steele et al.
v. Buck, 343.
4. So, too, the performance of duties implied by law may be ex-
cused when performance becomes impossible by inevitable accident,
but a duty or charge created by the express terms of an agreement may
not be so excused. A party having failed to provide for his own pro-
tection in case of disaster, the law will not supply the omission. Ibid.
343.
Contract of sale of good will of a business.
5. What will constitute a breach. Where a person holding the note of
another agrees with the maker to forfeit the note if he should buy or sell
goods in the line of the wholesale millinery goods business in the city of
Chicago before the first of July, 1870, and it is claimed that such aeon-
tract was broken, it must appear that the payee had, in point of fact, en-
gaged in buying or selling goods in the line of the wholesale millinery
goods business at the place and before the time named in the agreement,
for himself or some other person with whom he had a joint interest.
If he acted as a clerk, or employee only, of persons engaged in the busi-
ness, and not for himself or a firm in the business, there was no breach
of the contract ; nor would the fact that he may have held himself out
as a member of a firm engaged in the business, forfeit the note, unless
he was a member of the firm. It is error to refuse to so instruct the
jury. The true question was, whether he was in fact a member of the
firm, or had an interest in the same. Greenebaum v. Gage, 46.
Of a building contract.
6. Superintendent' 's certificate. Where a party contracts to furnish
stone to erect a building, with reference to stone from a particular
quarry to be used, and the superintendent selected by the parties, and
upon whose Certificate payment was to be made, recommends it, and
the contractor uses it, and receives certificates after using it on a part
of the building, the superintendent can not, capricious^ or fraudu-
lently, refuse to give the contractor a certificate that he has completed
his contract, on the pretext that the stone used was not of the proper
kind, so as to deprive the contractor of the price he was to receive for
furnishing the stone for the building. Badger v. Kerber, 328.
36— 61st III.
562 INDEX.
CONTRACTS. Continued.
In respect to building a street railway.
7. Extending time for its completion. Where the charter of a horse
railway company authorized them to build a single or double track
railway over any streets in the city of Chicago, as had been or should be
authorized by the common council, and full permission was given by
ordinance to lay a track, in which a time was fixed for its completion,
aud a forfeiture was provided for in case of non-completion, and before
the expiration of the time the ordinance was amended and the time
extended for the period of ten years : Held, that the operation of this
latter ordinance was to extend the time for ten years after the expira-
tion of the time fixed by the previous ordinance. McNeil v. Chicago
City Railway Co. 150.
8. After this latter ordinance was adopted, the company passed a
resolution adopting the terms of the ordinance on the condition of
the repeal of certain other ordinances, and agreed to a postponement
of laying the track for the time mentioned. Subsequently, the com-
mon council accepted the proposition contained in the resolution, re-
citing that the company had obligated itself to postpone the laying of
the track for the period of ten years, and the amendatory ordinance
was affirmed: Held, this did not constitute an abandonment of the
right to build by the company, but merely a postponement of the right.
Ibid. 150.
9. The effect of this contract was to extend the time ten years
longer, and the period of the delay began to run from the date of the
ordinance accepting the proposition contained in the resolution, and
will end ten years from that date. The ten years extended time must
be added to the original time given for laying the track. McNeil v.
Chicago City Railway Co. 150.
Contract construed.
10. Of advances for the use of a corporation by one of its members.
Where two brothers, contemplating the formation of a private corpo-
ration, purchased certain coal lands and mining rights, and agreed when
the purchase was made that they were to have an equal interest in the
stock of the company, and to make equal payments on account of the
purchase and for carrying on the business ; and after the incorporation,
one of them advanced various sums of money in pa}rment of drafts of
the company and in taking up its indebtedness, for which he was cred-
ited upon the books of the company : Held, in a suit against the com-
pany to recover for such advances, that the agreement was intended
only to bind each brother to advance equal amounts as loans, and not,
as donations ; and even if this were not so, that the company could not
set up such agreement in defense, as it was no party to it. The court
could only look to the legal liabilities of the company. Merrick v.
Peoria Coal Co. 472.
INDEX. 563
CONTRACTS. Contract construed. Continued.
11. If by the recovery for advances the plaintiff should obtain an
equitable advantage over his brother by getting more than a fair share
of the corporate property, under the agreement to contribute and share
equally in the stock and dividends of the company, the brother in
equity might have the rights and burdens of each equalized. Merrick
v. Peoria Coal Co. 472.
Construction op contracts.
12. When two separate instruments will be regarded as one contract —
parol evidence to show their relation to each other. See EVIDENCE.
Rescission op contracts for fraud.
13. Whether notice required. Where a person sells an article of
personal property to another, and the evidence tends to prove there
were false and fraudulent representations as to the condition of the
of the property, and it is not seen by the purchaser until after the
purchase, when he finds it entirely different from what was repre-
sented, he would not be required to give the vendor notice that he
rescinded the contract, and it would be error for the court to instruct
the jury that he could make no defense in a suit for the purchase price
without he gave notice in a reasonable time of his refusal to receive
the property. Foulk v. Eckert, 318.
Where one is employed for a certain time.
And not allowed to fulfill his engagement — extent of his remedy. See
MEASURE OF DAMAGES, 2.
Of the designation of amounts.
Omission of the word " dollars " in a promissory note — presumption.
See PROMISSORY NOTES, 1.
Restricting liability op carrier by contract.
To what extent allowable — and of the assent of the shipper thereto. See
CARRIERS, 1, 2.
Op contracts between a corporation and its members.
And the right of action in respect thereto. See CORPORATIONS,
1, 2, 3.
CONVENING ORDER.
Of its place in the record.
1. Where the placita appeared, not at the beginning of the tran-
script, but in the latter part, but precedes the final judgment in the
case, it was held that the law was complied with requiring that the
judgment must appear to have been rendered \>y a court regularly or-
ganized. Truitt v. Griffin, 26.*
♦Necessity of convening order. See Rich et al. v. City of Chicago, 59 111. 286.
564 INDEX*
CONVEYANCES.
Quit- claim deed.
1. How far effective. A quit-claim deed will as effectually pass the
title and covenants running with the land as a deed of bargain and
sale, if no words restrict its meaning. Morgan v. Clayton, 35.
2. Taking an assignment of prior incumbrance— whetlwr the holder is
a creditor or a purchaser. See MORTGAGES, 10.
Of a married woman's real estate.
3. The husband must join. See MARRIED WOMEN, 1 to 4.
CORPORATIONS.
Of contracts with members and officers.
1. And the right of action in respect thereto. There is no rule of law
which prohibits a shareholder from dealing with the company of
which he is a member, or from suing or being sued by it. The presi-
dent of a private corporation has the right, with his own funds, to
purchase notes and drafts of the corporation, and when he does so, he
will succeed to all the rights of the prior holders ; or he will have the
right, when he takes up such indebtedness with his own means, to
maintain an action against the corporation for money paid, laid out
and expended for its use. Merrick v. Peoria Coal Co. 472.
2. And if the president of a private corporation advances it money
to enable it to carry on its business or make purchases, he can sue it
and recover for money loaned. Ibid. 472.
3. A shareholder or officer of a private corporation has the right
to deal with the company in the same manner as strangers, and when
he does so, such party acquires the same rights and incurs the same
liability as in the case of a contract with a stranger. Ibid. 472.
Compensation to officers.
4. Unless provision is made for compensation for the services of the
president of a corporation in the by-laws or resolutions of the com-
pany, such officer will have no right to recover for services. Ibid. 472.
Municipal corporations.
5. Questioning their corporate existence. In an action of debt brought
by an incorporated town against a resident thereof to recover of the
latter an amount of tax assessed against him on his property situate
in the town, it was held, that the legal existence of the corporation
could not be tested in such action. Town of Geneva v. Cole, 397.
6. Of tlieir power to borrow money without a note of the people. Where
the charter of a town prohibited the trustees from borrowing money
INDEX. 565
CORPORATIONS. Municipal Corporations. Continued.
unless authorized by a vote of its citizens, and they directed the street
commissioner to open a street, and in doing so he borrowed from the
plaintiff, at different times, various sums of money, amounting to
several hundred dollars, and the trustees afterwards issued orders on the
treasury for the amount, and suit being brought to recover the amount
due on them t Held, that the orders were issued in violation of law,
and were void, as the transaction was, in substance, borrowing money
without being authorized by a vote of the citizens of the town. Presi-
dent and Trustees of Lockport v: Gaylord, 276.
7. Of their duty and liability in regard to the safety of public high-
ways. See HIGHWAYS, 7 to 11.
8. Liability for acts of negligence — and how far answerable for acts of
its servants, agents and contractors. See NEGLIGENCE, 4 ; MASTER
AND SERVANT, 7, 8, 9.
COSTS.
On presentation op claims against an estate.
1. Who liable for costs. Where the record fails to show when an
administrator was appointed, the date of his letters, or that a term of
court had been fixed for the adjustment of claims, or any evidence
that defendant was administrator until the allowance of the claim, it
will not be presumed that the claim was irregularly filed or that the
costs were improperly awarded against the defendant. Beardsley v.
Hill, 354.
COVENANT.
When the proper remedy. See ASSUMPSIT, 1.
CRIMINAL LAW.
Bail.
1. His liability — wlien fixed, so as to enable him to resort to an indem-
nity, or to his principal. Where a recognizance has been forfeited in
the State of Ohio, and suit brought on the recognizance, resulting in
a judgment in favor of the bail, and, on appeal, the judgment is re-
versed and the cause remanded, and the bail then compromises with
the State, and pays a part of the amount of the recognizance in dis-
charge of the forfeiture: Held, that the liability of the bail was thus
fixed, and when he made the payment he might then look to his prin-
cipal, or to the note and mortgage that had been assigned to him, for
indemnity, and might enforce the mortgage to the extent that he had
566 INDEX.
CRIMINAL LAW. Bail. Continued.
paid on the forfeited recognizance and necessary expenses, if that did
not exceed the amount of the mortgage note. Stevens et al. v. Hay,
Admr. 399.
2. Where the principal fails to appear according to the condition
of his recognizance, and a forfeiture is# taken, the liability of the bail
is fixed, and he can only show that there was no power to take the
recognizance, that it is invalid, or that he has in some mode been dis-
charged, to escape liability. Ibid. 399.
Riot.
3. What constitutes. A party claiming to have purchased a colt,
procured the assistance of two other persons to drive the animal from
the range into the inclosure of the owner, and, against the remon-
strance of the latter, attempted to secure the colt and take it <lway,
one of the confederates being armed with a pistol and threatening the
owner upon his interfering to prevent the property from being taken
out of his possession : Held, these acts constituted a riot. Bell v.
Mallory, 167.
4. Each liable for tlie others. In such a combination, when proved,
the unlawful acts of one are the acts of all the confederates. Ibid. 167.
Evidence in criminal cases.
5. On indictment for obtaining money under false pretenses. Upon
the trial of a party prosecuted under an indictment charging him
with obtaining money under false pretenses, the prosecuting witness,
the party alleged to have been defrauded, testified that the prisoner
represented he had a large quantity of nutmeg graters and weather
strips, and that he was induced, by his representations as to the profits
arising from the sale of them, to embark in the business with him, and
that he paid him $200. On cross-examination, the witness was asked :
"Did you not get fifty-six dozen nutmeg graters?" Held, it was error
to refuse to permit the question to be answered. The prisoner had
the right to any testimony which might show his representations to
be true, and any evidence which showed that the property, or any
part of it, was owned by the prisoner, and was obtained by the pros-
ecutor, should have been received as explanatory of the character of
the representations. Rainforth v. The People, 365.
CURATIVE LEGISLATION. See CONSTITUTIONAL LAW, 1, 2.
DAMAGES.
Excessive damages. See NEW TRIALS, 6.
INDEX. 567
DEBTOR AND CREDITOR.
When one is considered as a creditor.
Rather than a purchaser — where one taking a quit-claim deed procures
an assignment to him of a prior mortgage. See MORTGAGES, 10.
DEDICATION.
What will constitute.
1. In an action to recover a penalty for an alleged obstruction of a
public highway, it was held to be error for the court to instruct the
jury that, while the voluntary use with the assent of the owner of the
soil ma}r not be enough to create a highway, but when used, traveled
by the public, and recognized and repaired by the public authorities,
and acquiesced in by the owner, it becomes a public highway by ded-
ication. In such a case, the question of an intention to dedicate by
the owner is essential to the dedication in addition to the other acts
specified in the instruction. That question should be fairly left to the
jury, but is taken from them by such an instruction. Harding v.
Town of Hale, 192.
2. A person platted a tract of land into town lots and blocks, des-
ignating the streets separating the blocks. The plat showed two
strips of about fifty feet in width, on each side of the grounds held by
a railway company for right of way, marked "depot." These strips
remained unoccupied and uninclosed for a number of years, being
used by the public as a pass way to and from the depot, until the pro-
prietor of the town erected on one of the strips a crib, and by himself,
or tenants, occupied the same: Held, that none or all of these acts
proved an intention to dedicate these grounds to the public, and the
fact that the owner marked these strips "depot," negatives the idea
of an intention to dedicate. And there being no dedication to public
use, he could not be enjoined from using the grounds for his private
use. Mc WiUiams et al. v. Morgan, 89.
DEMAND.
By a consignor, of a commission merchant.
Construction of the act of March 4, 1869. See COMMISSION MER-
CHANT, 1, 2.
DEMURRER.
TO A PLEA IN CHANCERY.
Not the practice. See CHANCERY, 4.
568 index.
DEPUTY.
Special deputy to serve summons.
Mode of appointment. See PROCESS, 3.
■ %
DESCRIPTION.
In suit to enforce mechanic's lien.
Sufficiency of the description of the premise*. See LIENS, 4.
DILIGENCE.
Degree of care required of an agistor. See AGISTMENT, 1, 2.
DITISION FENCES.
Rights of adjacent proprietors.
1. The proprietors of adjoining lands are not under any legal obli-
gation to perpetually maintain division fences -with each, other. It is
a matter of convenience between the parties, which either party may,
at his pleasure, terminate by giving the statutory notice. Hoag v.
Sicitzer et al. 294.
As to establishing a highway.
2. Adjoining one's land. So, where a public road is established
adjoining the land of another, the town officers may, in opening the
same, discontinue a division fence without any damages accruing there-
by to the owner of the land adjoining which the road is established
Ibid. 294
DIVORCE.
Jurisdiction.
1. As to residence of the complainant. See JURISDICTION, 1.
Alimony.
2. Of aV/>wing and modifying the, same. The courts grant alimony
upon proof of the circumstances of the parties, and unless found ex-
c:=sive, decrees will not be disturbed. The same courts may after-
wards modify, on proof of such change as renders the amount exces-
sive. Parker v. Parker, 369.
index. 569
EJECTMENT.
Fraud as a defense.
1. A and his wife conveyed to B a tract of land, which the latter
afterwards conveyed to C. A still remaining in possession of the land,
C brought an action of ejectment against him. The defendant offered
to show, in defense, that the deed from him and his wife to B was
made in consideration of a conveyance to him by B of a tract of land
in Missouri, and that B had made fraudulent representations as to the
character and value of such land, to which the plaintiff was a party :
Held, that, while if the fraud, as claimed, had been practiced, it would
afford good ground for asking a court of equity to rescind the contract
and direct mutual re-conveyances, yet it could not be received as a de-
fense to the action, as in ejectment the legal title must prevail, and the
deeds showed a legal title in the plaintiff, and the alleged fraud went
to the consideration, merely, and not to the execution of the deed.
Dyer v. Day et al. 336.
2. Nor could it avail the defendant that he had induced his wife to
sign the deed, relinquishing her homestead right in the land, by lead-
ing her to suppose the instrument was a mortgage to secure the pay-
ment of $200, even if the grantee in the deed and the plaintiff were
both cognizant of -such fraudulent representation ; for the action was
brought against the husband alone, and he could not be permitted to
set up his own fraudulent statements to his wife to defeat a recovery.
Ibid: 3; 6.
3. The remedy of the wife could only be sought in a proceeding to
which she, herself, is a party, and in which the relief could be adjusted
on equitable grounds. And should the property be worth more than
$1000 — as her claim could amount only to that sum in any event — the
respective rights of the parties could be settled only in chancery.
Ibid. 33(5.
New trial.
4 Mare than a year after the verdict. Where a trial was had and a
verdict found, but no judgment entered, and more than a year subse-
quently the court made an order vacating a judgment nunc pro time,
and granting a new trial, the effect of this order was simply to set
aside the verdict and grant a new trial. Delano v. Bennett, S3. '
When a case may be properly tried.
5. Effect of withdrawal of the attorney from the case. Where a party,
supposing the court erred in vacating a judgment in ejectment after
the expiration of a year, when no such judgment had ever been ren-
dered, and when the case was called for trial the attorney for plaintiff
withdrew from the case, and the court proceeded to try it by a jury.
570 INDEX.
EJECTMENT.
"When a case may be properly tried. Continued.
the trial resulting in a verdict and judgment for. defendant: Held,
that this was not error. The cause was in a condition to compel a trial
or a non-suit. It was regularly on the docket, a new trial had been
granted, and it was called for trial in its order. Ibid. 83.
6. Plaintiff's attorney was in court, and, without reasons, objected
to a trial. Xhe other party, as was his right, insisted upon a trial, and
the court had no power to dismiss the suit for want of prosecution, as
in case of a non-suit, because the plaintiff, being present, must elect to
take a non-suit, or the cause must go to trial. Ibid. 83.
ELECTIONS.
FOR MUNICIPAL SUBSCRIPTION.
To slock of railroads — of the election in respect thereto. See SUB-
SCRIPTION, 2, 3, 5, 9.
Curative legislation.
Its effect upon a mid election and subscription. See CONSTITU-
TIONAL LAW, 1, 2.
Of the power to enjoin the holding of an election. See IN-
JUNCTIONS, 5, 6.
EMINENT DOMAIN.
Taking private property for public use.
1. Must be judicial action and payment of damages. The right of
the State to take private property for public uses can not be asserted
by mere enactment. The constitution, providing that the citizen shall
not be deprived of property except by due process of law, or in con-
formity to the law of the land, requires a trial or judicial proceeding,
and a judgment. Cook v. South Park Commissioners, 115.
2. Nor does a designation by metes and bounds, followed by a pop-
ular vote of approval, a selection by commissioners, and a condemna-
tion, upon due proceedings, deprive the owner of his title or right of
possession. Without pa}rment of the damages awarded, the antece-
dent proceedings are not effective. The last act must be performed
before the law will regard the land as taken or acquired. Ibid. 115.
3. Valuation — prospective value. In assessing damages, the value at
the time of the condemnation should be considered, the owner being
entitled to the benefit of an advance caused by the prospective estab-
lishment of a public park. Ibid. 115.
index. 571
EMINENT DOMAIN.
Taking private property for public use. Continued.
4. Of rent against the owner pending proceedings. The commission-
ers not having acquired title nor possession, no tenancy existed during
the proceedings, to justify an award of rent against the owner in pos-
session. Cook v. South Park Commissioners, 115.
5. Interest on an award. No interest accrues on an award before
judgment, nor can a party causing or contributing to delay, have in-
terest, until entry of final judgment. Ibid. 115.
6. Interest on the judgment. A judgment in a proceeding for the
condemnation of private property for public use, awarding damages,
will bear interest, although no execution can be issued upon the judg-
ment. Ibid. 115.
7. Verdict upon awards — execution — mandamus. The verdict upon
an award being special, no execution can issue upon it ; but the prop-
erty does not pass until payment. Mandamus is necessary to compel
the commissioners to act. Ibid. 115.
S. Of the character of compensation required. The constitution de-
clares that no man's property shall be taken or applied to public use
without just compensation being made to him : Held, this compensa-
tion must be pecuniary in its character because it is in the nature of
a compulsory purchase. Statutes authorizing municipal bodies to
exercise the right of eminent domain, must be strictly construed.
Weckler v. City of Chicago, 142.
ERROR.
Erroneous judgment.
1. Wot void. See ATTACHMENT, 3.
2. Whether chancery will undertake to correct an erroneous judgment.
See CHANCERY, 6.
ESTOPPEL.
Denying validity of an award.
Party estopped by acting under the award. See ARBITRATIONS
AND AWARDS, 6.
EVIDENCE.
Parol evidence.
1. To explain a written contract — and that two papers form a part of
Uie same contract. Where a person holding the note of another agrees
572 INDEX.
EVIDENCE. Parol evidence. Continued.
with the maker to forfeit the note if he should buy or sell goods in the
line of the wholesale millinery goods business in the city of Chicago
before the first of July> 1870 ; and bill of sale, from the payee to the
maker, bearing date prior to the agreement, showed a sale by the
former to the latter of all of his interest, the partnership goods, books
good will, etc., belonging to a firm of which they were members :
Held, in a suit on the note, that it might be shown by parol that both
papers, although bearing different dates, were executed at the same
time, and formed part of the same contract ; that, by such evidence, it
might be shown what was the character of the business in which they
were engaged, and to which the bill of sale and good will related; but
parol evidence as to the negotiations that occurred previous to and at
the time of the sale, are inadmissible in such a case, because they were
merged in the written agreement, and the separate agreements must
refer in some manner to the same thing before they can be viewed as
one instrument, and construed in the light of surrounding circumstan-
ces. Greenebaum v. Gage, 46.
2. To vary the terms of a written agreement. A party can no more
vary the terms of a written agreement by parol in a court of equity
than in a court of law. Verbal understandings can not be proved for
such purpose. Gibbons v. Bressler, 110.
3. To alter, or add a condition to a promissory note. See FRAUD, 1.
4. To establish a trust. See TRUSTS AND TRUSTEES, 2.
Opinions of witnesses.
5. In an action against a city to recover damages for personal in-
juries alleged to have resulted from an unsafe condition of the side-
walk, where a witness had stated that there was a thin coating of ice
throughout the city, his opinion as to whether it increased the diffi-
culty of passing over the sidewalks was inadmissible, as it was for the
jury to draw conclusions on that question from the evidence before
them without the aid of the witness. City of Roekford v. Hildebrand,
155.
Admissions.
6. When an admission involves a conclusion as to the party's legal
rights, and does not relate to a particular fact, and where it is mani-
fest that it was made in ignorance of his legal rights, it is entitled to
but little weight. Merricfc v. Peoria Coal Co. 472.
Conversations.
7. Where a witness details a conversation, the party against whom
the evidence is offered is entitled to the whole of the conversation.
PJiares v. Barber, 271.
INDEX. 573
EVIDENCE. Conversations. Continued.
8. Out of the presence of the person sought to he affected by them.
Where parties enter into an arrangement to develop a patent for the
improvement of street cars, it is error, when it is sought to charge one
of the number for money loaned him by another of its members, to
admit in evidence conversations between other members of the firm
when defendant was absent, and which occurred prior to his connec-
tion with the speculation, and which were not communicated to him.
Aiken v. Hodge, 436.
Hearsay.
9. Evidence of the opinions expressed by persons in New York and
elsewhere as to the value of an invention, was hearsay, and inadmis-
sible. If such opinions could be received, the persons expressing1
them should have been called. Ibid. 436.
10. Declarations of third parties should not be admitted in evi-
dence until the party against whom they are offered is connected with
them. Ibid 436.
Declarations of a party.
11. In his own favor. It is error to permit a party to introduce his.
own declarations in reference to the matter in dispute, made when the
person against whom they are offered was not present. The party is
a competent witness, and should be introduced to prove the facts.
Ibid. 436.
In respect to the release of sureties.
12. And herein of evidence on cross-examination. In an action on a
promissory note by the payee against the maker and his sureties, one
of the issues involved was, whether or not the sureties had been re-
leased by an agreement between them and the paj^ee upon a sufficient
consideration. The existence of such an agreement was positively
testified toby one of the sureties and the principal maker, and as pos-
itively denied by the payee. In rebuttal the plaintiff introduced a wit-
ness who detailed a conversation between the payee and the sureties
in regard to an application which they intended to make to the prin-
cipal maker, to prevail upon him to secure the debt in some other
manner. It was also in evidence that the principal maker had executed
to the payee a certain mortgage. Upon cross-examination the witness
was asked if anything was said in that conversation about releasing
the sureties from the note. Objection was made to the question and
sustained by the court: Held, the question should have been an-
swered. Phares v. Barter, 271.
574 INDEX.
EVIDENCE.
In respect to the release of sureties. Continued.
13. It could not be said that the refusal of the court to permit the
question to be answered excluded no fact from the jury, for it fore-
stalled inquiry which may have resulted in important testimony.
Phares v. Barber, 271.
AS TO THE UNDERSTANDING OF A WITNESS. •
14. In respect to the effect of the mortgage given by the principal
maker of the note to the pa3ree, on the liability of the sureties, the
former testified as follows: "My understanding was at the time, and
still is, that the mortgage was given to release the securities and se-
cure the payment of the note. I think Barber (the payee) understood
it in that way also :" Held, the evidence was properly excluded from
the jury. The purpose in the execution of the mortgage could only
be ascertained by the acts and declarations of the parties in connec-
tion wTith the instrument. The object of the testimony should have
been, not to obtain the idea of the witness upon undisclosed facts, but
to elicit facts to enable the jury to form their own conclusion. Ibid.
271.
Ordinance of a city, as evidence. «
15. In a suit against the city. It is not error to admit the ordinances
of a city when it is sued for injury resulting from neglect in keeping
the sidewalks in a safe condition, when they tend to show the city has
control thereof and had taken the streets under its cognizance. Such
ordinances are relevant to the issue and therefore proper evidence,
and if likely to mislead, the defendant should ask instructions to obvi-
ate such tendency and confine the evidence to its legitimate purpose.
City of Rockford v. Hildebrand, 155.
Proof of ordinances.
16. Whether sufficient. Where the mayor of the city testified that
the book from which ordinances were read, marked "City Records,"
was the original record of the city wherein was recorded all city or-
dinances; that it was kept in the office occupied by the city clerk and
himself, and he had access to it: Held, the ordinances were sufficiently
proved to permit them to be read in evidence, without proof of their
publication. Ibid. 155.
Contradicting a witness.
17. By his testimony on a former trial — phonographic report of testi-
mony. A transcribed phonographic report of the evidence of a wit-
ness given on a former trial, can not be read for the purpose of
contradicting the witness on the subsequent trial. The legislature
has not declared that such reports shall be evidence for any purpose.
Phares v. Barber, 271.
INDEX. 575
EVIDENCE. Continued.
Relative force op evidence.
18. As to whether a mortgage, sale was fraudulent. Where it is charged
that the purchaser at a mortgage sale really bought the property for
the mortgagee and uot for himself, but being called by the complain-
ants as witnesses, both emphatically deny it, but about a year and nine
months after the sale the purchaser, who had meantime been drawing
the rents of the property, then conveyed the fee to the mortgagee, the
inference from such a conveyance is not so strong as to overturn their
positive testimony. Burr et al. v. Borden et al. 389.
AS TO DURATION OP AN AGENCY.
19. Where it is claimed that a person employed a s'age manager
for the season at $60 per month, it was not error to admit evidence of
the acts done by the agent in the fall in reference to the business of
the next year, when the acts were done with the knowledge or ap-
proval of the employer, as tending to show that the agent was em-
ployed for the season. Fuller v. Little, 21.
20. Where such evidence is admitted, and the court instructed the
jury that it should not prejudice defendant unless the acts were
authorized or ratified by him : Held, that the evidence could have
worked defendant no harm. Ibid. 21.
Cross-examination.
21. Leading questions. On cross-examination a party has a right to
propound leading questions. Phares v. Barber, 271.
22. Disclosing the object of questions. Counsel are not bound to dis-
close the object of questions, upon cross-examination, when the court
can easily see that they are germane to the issue. Ibid. 271.
Burden of proof.
In case of loss of goods by a carrier — burden of proof as to use of
proper care. See CARRIERS, 3.
Evidence under certain issues. See PLEADING AND EVI-
DENCE.
Impeaching a witness.
Of the manner thereof. See WITNESSES, 4, 5.
Evidence in criminal cases. See CRIMINAL LAW, 5.
EXCEPTIONS AND BILLS OF EXCEPTIONS.
Bill of exceptions.
1. Necessity tliereof. Where it is assigned for error that there was
a variance between the bond declared on and that offered in evidence,
576 INDEX.
EXCEPTIONS AND BILLS OF EXCEPTIONS.
Bill of exceptions. Continued.
the court can not say that the error exists when, from any cause, the
bond is not copied into the bill of exceptions. It is not enough that
error is alleged, but it must be shown to exist before a reversal will
be had. Smith et al. v. Frazer et al. 164.
EXECUTION.
Taking private property for public use.
Upon the award of damages no execution can issue. See EMINENT
DOMAIN, 7.
Exemption of personal property.
Under acts <?/1843 and 1861. See EXEMPTION, 1.
EXEMPTION.
Personal property exempt from execution.
1. Under acts of 1843 and 1861. Under the law of 1843, exempting
personal property from levy and sale on execution, the person entitled
to the benefits of the act may select a horse of less value than $60,
under the clause allowing him property to that amount, suitable to
his occupation and condition. Under the act of 1861, such person is
entitled to hold, among other articles, a horse worth not exceeding
$100, in addition to the articles exempt under the law of 1843 : Held,
that a person entitled to the benefit of these exemptions, may hold,
under both statutes, a horse worth not exceeding $160; that these acts
are not to receive a strict construction, and that, according to their
spirit, a person thus situated may, in his claim, unite both laws. Good
v. Fogg, 449.
FORCIBLE ENTRY AND DETAINER.
Forcible detainer.
1. When it will lie in favor of a mortgagee — in case of a collusive sur-
render of possession by mortgagor. Where a party executed a mortgage
on real estate to secure the payment of a sum of money, remained in
possession several years and till foreclosure, and permitted the land to
be sold for the taxes of the year in which the mortgage was given,
and the purchaser under the tax sale sued in ejectment and recovered
judgment against the mortgagor who failed to give notice of the suit
to the mortgagee, and a writ of possession was sued out and the plain-
tiff in ejectment was put in possession, and the mortgagor leased the
premises from the plaintiff in ejectment for one year, and when the
mortgage was foreclosed and the land purchased by the mortgagee,
INDEX. 577
FORCIBLE ENTRY AND DETAINER.
Forcible detainer. Continued.
the latter, after receiving a master's deed, brought forcible detainer,
when the recovery and eviction in the ejectment suit was set up as a
defense: Held, the facts showed collusion between the mortgagor and
the holder of the tax title, and that constituted no defense for the
mortgagor, and he must yield possession to his landlord. Frazier v.
Gates, 180.
FORFEITURE.
Contract op purchase op land.
Of the forfeiture thereof for default in payment. See VENDOR AND
PURCHASER, 1, 2, 3.
FORMER ADJUDICATION.
In the Supreme Court. See APPEALS AND WRITS OF
ERROR, 4.
FORMER DECISIONS.
Married women's separate property.
1. Of their disposing power over it. The doctrine of equity, as to a
married woman's disposing power over her separate property, was car-
ried further in the case of Young and Wife v. Graff, 28 111. 20, than
the authorities seem to warrant. Bressler et al. v. Kent, 426. See
MARRIED WOMEN, 4.
Degree op praud in sale under power in a mortgage.
2. Instead of saying that sales under a power in a mortgage will be
set aside on "the slightest proof of fraud or unfair conduct," as was said
in Langwith y. Butler, 3 G-ilm. 42, the rule would be more accurately
stated by saying, "upon proof of the slightest fraud or unfair conduct."
Burr et al. v. Borden et al. 389.
FORMER RECOVERY.
Judgment in rem in attachment.
And only partial satisfaction — no bar to an action on the original in-
debtedness for the unpaid balance. See ATTACHMENT, 6.
37— 61st III.
578 INDEX.
FRAUD.
False representations.
1. To induce subscription to stock of railroad. In an action upon a
note given upon a subscription to the stock of a railroad company, the
defendant set up as a defense that the inducement to subscribe to such
stock was to secure a competing line, and the agent who procured the
subscription represented that such purpose would be attained. It was
held, such representations form no part of the subscription, and in such
written instruments parol evidence can not be heard to alter, change
or add a condition to them. Hays v. Ottawa, Oswego and Fox River
Valley Railroad Go. 422.
2. Matters of opinion. Where the purchaser of an article seeks to
set aside the sale ou the ground of fraudulent representations made by
the seller, equity will not grant the relief merely because of repre-
sentations which are but matters of opinion or speculative commenda-
tion as to the qualities of the thing sold. Warren et al. v. Doolittle, 171.
3. In this case, as regards the matters of fact embraced in the rep-
resentations made, it is held, that the proof shows no fraud which
would authorize a rescission of the contract. Ibid. 171.
In sale under power in a mortgage.
4. Of the degree of fraud. Instead of saying that sales under a
power in a mortgage will be set asde on "the slightest proof of fraud or
unfair conduct," the rule would be more accurately stated by saying
"upon proof of the slightest fraud or unfair conduct." But in a case
of this kind, as well as in any other, a court must fairly weigh the
evidence, and can not set aside a sale merely upon slight proof of un-
fairness, if met by preponderating evidence on the other side. Burr
et al. v. Borden et al. 389.
5. In all cases of this character, where the sale is attacked not as
simply void for non-compliance with the power, but as voidable on
equitable considerations having reference to the unfair mode in which
the power has been executed, the decision must turn on a comparison
Of the equities. Ibid. 389.
Rescission of contract for fraud.
6. Whether notice required. See CONTRACTS, 13.
Fraud as a defense in ejectment.
7. Not allowable. See EJECTMENT, 1, 2, 3.
Fraudulent abuse of process.
8. Setting aside sale on attachment, for fraud — in chancery. See
CHANCERY, 5.
INDEX. 579
FRAUD. Continued.
Delay in asserting fraud.
\). Ax a ground for refusing relief. See LIMITATIONS, 6.
GARNISHMENT.
Omission in return as to property.
1. Answer by garnishee to interrogatories, waiver of the irregularity.
S. e ATTACHMENT, 1.
Answer op garnishee.
2. As evidence. The sworn answer of a garnishee must be taken as
true until overcome by evidence. Truitt v. Griffin, 26.
Replication to answer.
3. Of its requisites. A paper filed for a replication, but which fails
to traverse the truth of an answer, or any part of it, is not a replica-
tion, puts nothing in issue, and the answer must be taken to be true.
11 id. 2(5.
GOOD WILL.
0
Contract op sale thereof.
What amounts to a breach. See CONTRACTS, 5.
GUARDIAN AND WARD.
What are necessaries for the ward.
1. Of traveling expenses — and herein, where money is advanced to the
ward by a person other than the guardian. Where an infant, against
the objections of her guardian, went to California, and another person
furnished money necessary to pay the expenses of the trip, and after-
terwards sued to recover the money from the ward and her husband,
she having subsequently married, and on the trial the court instructed
the jury that what were necessaries depended upon circumstances; if
the going of the ward to California was prudent and proper under the
circumstances, and plaintiff advanced money necessary to take her
there, and the trip was for her benefit, then it was for the jury to say
whether the money was advanced for necessaries: Held, that this in-
struction was wrong, there being no positive rule as to what are
necessaries. Whether articles of a certain class or kind are such as
infants would be liable for, or whether certain kinds of expenditures
are necessaries, must be judged of by the court, but whether a partic-
ular class are suitable to the condition and estate of the infant, is for
580 INDEX.
GUARDIAN AND WARD.
What are necessaries for the ward. Continued.
the determination of the jury. The court should, in the instruction,
have denned what constitutes necessaries. McKanna et al. v. Merry,.
177.
2. Horses, saddles, bridles, pistols, liquors, chronometers, etc., have
generally been held not to be necessaries, and no case is found that
money advanced for traveling expenses, under the circumstances of
this case, is necessary. Ibid. 177.
3. It was the duty of the guardian to superintend the education
and nurture of his ward, and apply the rents first, and next the inter-
est on moneys, for the purpose. He was the judge of what were
necessaries, if he acted in good faith, and a third party had no right to
usurp the rights and duties of the guardian, even if the money was, in
some sense, a benefit, and the trip prudent and proper. Ibid. 177.
4. If the guardian, in good faith, acting for the best interest of the
ward, furnishes means suitable to her age, station in life, and with
reference to her estate, then the infant would not be liable. Ibid. 177.
HIGHWAYS.
Of damages where land is not taken.
1. As where a road adjoins the land of a person. Under the consti-
tution of 1848, and the statutes in force in March, 1870, a party is not
entitled to damages by reason of the construction of a highway ad-
joining and abutting against his lands, where no part thereof lias been
taken for the use of the road. Hoag v. Switzer et al. 294.
2. At that date the commissioners of highways had no power to
consider, assess or award consequential or remote damages to a party
b)r reason of the construction of a highway where no part of his lands
had been taken for that purpose. The road law of 1861, sections 55,
56 and 68, does not conflict with this view, but sustains it. Ibid 294.
3. As to tJie question of division fences, in its relation to damages in
such case. See DIVISION FENCES, 2.
Of the width of a public road.
4. Where the county commissioners lay out and establish a public
highway of a prescribed width, it will be confined to that width, un-
less increased by dedication or otherwise. The mere fact that it was
graded, and was traveled a greater width, but outside of the road no
particular strip was so used, does not change the boundary of the road.
Harding v. Town of Hale, 192.
INDEX. 581
HIGHWAYS. Continued.
Obstruction of highway.
5. Planting and 'protecting a live fence on the line of the road. Under
the act of 1849, the owner of land adjoining a highway may plant a
live fence on the precise line of the road, and may erect a protection
fence not more than six feet in the road from the live fence, and may
maintain it for the period of five years, without being liable to pros-
ecution for obstructing the highway. Harding v. Town of Hale, 192.
6. In such a case, it is error to instruct the juiy that, if the defend-
ant built a fence in any part of a highway that had been used for more
than twenty }^ears before the fence was erected, the}' should find the
defendant guilty of obstructing the road. Such an instruction ex-
cludes a defendant from all benefit of the statute of 1849, and should
be modified or refused. Ibid. 192.
Municipal corporations.
7. The duty and liability in regard to the safety of highways. A tun-
nel under the Chicago river in the city of Chicago is one of its high-
ways, and as such, it was the duty of the city to use all reasonable
efforts to keep it in a safe condition for travel ; and if that could not
be done without stoppage of travel for a time, then the approaches
should have been so guarded as to prevent persons from entering
therein, or in some manner warned of the danger. Or it should have
been closed. It was negligence to keep it open for passage, to the
peril of life. City of Chicago v. Hislop, 86.
8. When the tunnel leaked, and large quantities of ice had formed
on the foot way, and about the middle of it, where the peril was the
greatest, the ice had been chipped up and not removed, and could not
be seen until the passenger was in its midst, the foot way was unsafe
and very daugerous, and had so remained a long time before the acci-
dent. In its dangerous condition, it was the duty of the city either to
have barred all ingress or to have given notice of the probable danger,
and where the person injured was guilty of no want of care, the city
must be held liable. Ibid. 86.
9. It is a duty resting on cities to keep their streets and sidewalks
in a safe condition for persons passing along and over them, but they
are not bound to keep them absolutely safe so as to preclude the pos-
sibility of accident or injury, but they are bound to exercise ordinary
care and diligence to keep them reasonably safe. City of Bockford v.
Hildebrand, 155.
10. Where charters of cities give them the power to cause suitable
sidewalks to be made and to keep them in repair, and make adequate
provision for so doing, the exercise of the power follows as a duty.
Where city authorities are clothed with a power which concerns the
582 INDEX.
HIGHWAYS. Municipal corporations. Continued.
public interest, the execution of the power ma}7- be insisted upon as a
duty which the corporation is bound to fulfill. Nor does it absolve
them from its performance by reason of the charter requiring the lot
owners to build sidewalks, as the city has control of them, and the
charter recognizes the liability of the city to damages and gives it an
action over against the owner of the adjacent lot. City of Rockford v.
Hildebrand, 155.
11. Where the city charter clothes it with power, and it is the duty
of the city, to prevent obstructions from continuing in the streets and
sidewalks, it is gross negligence, if known to the city officials, to per-
mit an opening in a sidewalk, made to admit light into the basement
of an adjoining building, to remain a long time without gratings or
other protection, and to permit large goods boxes to remain piled
upon the opposite side of the walk so as to impede and endanger the
safety of persons passing along the walk; and when continued a
great while, the city will be charged with notice of the defects and
obstructions, and is liable for injuries produced thereby. City of
Galesburg v. Higley, 287.
12. Of notice to the municipal authorities. In an action against a
city to recover for injuries received b}r reason of the unsafe condition
of a sidewalk, where the sideAvalk had been in the condition it Avas
when the accident occurred, for one year and nine months, it was not
such error in the court in giving an instruction that, if the jury be-
lieved the sidewalk had been in an unsafe condition an unreasonable
length of time, as would reverse, although it omitted a requirement
that they should find the city had notice of its condition. Notice, ac-
tual or constructive, will be implied. City of Rockford v. Hildebrand,
155.
13. Diligence and care on the part of the plaintiff. If the sidewalk
where the accident occurred, and all of the streets, were unusually icy,
and it was more than usually difficult to walk on them, and the acci-
dent occurred in the night time, it was no doubt the duty of plaintiff
to use a higher degree of care and caution than he would under ordi-
nary circumstances. Common or ordinary diligence is that degree of
diligence most generally exercised by men in respect to their own af-
fairs, and not that of any one man in particular. And the question,
whether due care and caution have been exercised, is one of fact and
not of law, and to be left to the jury. Ibid. 155.
Dedication for a public highway. See DEDICATION, 1
INDEX. 583
HOMESTEAD.
Release of homestead obtained by fraud.
Remedy of the wife. See EJECTMENT, 3.
IMPROVEMENTS
On setting aside an administrator's sale.
Of the rule of adjustment of rents and improvements. See CHAN-
CERY, 10, 11.
INFANTS.
What are necessaries.
And 7iow that question is to be determined. See GUARDIAN AND
WARD, 1 to 4.
INJUNCTIONS.
TO PREVENT CLOUD UPON TITLE.
1. Equity will entertain a bill to restrain, by injunction, the sale of
lands on execution, for the purpose of preventing the creation of a
cloud upon the complainant's title. Bennett v. McFadden et at. 334.
TO ENJOIN THE SALE OF RENT CORN.
2. At suit of the landlord. Where a part}'- purchased a tract of land
of another, and being unable to make payments, prevailed upon his
vendor to release him from the purchase and to agree to treat him as
a tenant for the year he occupied the premises, and to receive, in corn,
one-half of the grain raised on the premises during the year, for the
rent, which was to be delivered at a specified place, but the purchaser
refused to perform his contract and fraudulently placed a part of the
corn in the hands of other persons, and was insolvent: Held, as the
owner of the land was justly and equitabty the owner of the corn, and
as the purchaser had been fully paid for it, and was insolvent, there
was not an adequate remedy at law, and equity should afford relief by
enjoining its sale by those having the possession. Parker v. Garrison
et al. 250.
3. Remedg in replevin in such case. In such a case, as no deliveiy of
the corn had been made, it is doubtful whether it could have been re-
covered by writ of replevin, especially as a part of it was not separated
584 INDEX.
INJUNCTIONS. To enjoin the sale of rent corn. Continued.
from other corn with which it was stored, and in the hands of the per-
sons with whom it had been placed, and a part in the possession of the
purchaser of the land ; and if such a recovery could have been had, it
would have required several suits, and there being no plain and ade-
quate remedy at law, relief was granted. Parker v. Garrison et al.
250.
TO RESTRAIN THE COLLECTION OP A TAX.
4 Where a town voted in favor of a subscription to the stock of a
railroad company, for a sum in excess of what the law allowed, and
the election was for that reason void, a tax levied to pay the interest
upon the bonds of the town issued upon the subscription, under a
curative act, Avhich the legislature had no power to pass, should be en-
joined, and if the bonds have not been negotiated, the railway com-
pany should be required to surrender them for cancelation. Marshall
et al. v. SiUiman et al. 218.
TO ENJOIN THE HOLDING OP AN ELECTION.
5. Of the power in respect thereto. Where the law authorizes an elec-
tion to be called in a township to determine whether a majority are in
favor of subscribing to the stock of a railroad company, and the elec-
tion is called in pursuance to the requirements of the law, a court
of equity has no power to restrain the officers from holding, or the
people from voting at, such election. A writ of injunction issued in
sucli case is void, and the officers and people are not bound to obey it,
as the court has no jurisdiction to issue the writ. Walton et al. v.
Beveling et al. 201.
Contempt — disobedience to such writ.
6. In such a case, the defendants are not liable to be punished for
a contempt of court for disobedience to such a writ. The statute con-
fers power upon the court to punish for a contempt "for disobeying
its process, rules or orders issued or made conformably to law." And
the court having no power to enjoin the holding of an election, an in-
junction issued for the purpose is not issued conformably to law, and
is void. Ibid. 201.
7. Where the law plainly requires an officer to perform a duty, and
he is not exceeding or abusing his powers, but fairly acting within the
same, and a court issues a writ to restrain him from its performance,
he must discharge his duty as prescribed by the law. Ibid. 201.
8. When disobedience is a contempt. Where the court lias jurisdic-
tion of the subject matter, but acts erroneously, then the person en-
joined would be in contempt by disobeying the writ. Ibid. 201.
INDEX. 585
INJUNCTIONS. Continued.
Motion to dissolve injunction.
9. Bill to be taken as true. Where the court, upon a motion made
to dissolve an injunction for want of equity in the bill, sustains the
motion, dissolves the injunction and dismisses the bill, the allegations
of the bill are to be taken as true, the same as upon a demurrer. Ben-
nett v. McFadden el al. 334.
Damages on dissolution.
10. Where an injunction issued to enjoin the holding of an election
is dissolved, it is the duty of the court, on suggestions being filed by
the defendants, to hear evidence and assess such damages as the na-
ture of the case may require. Nor does the fact that the writ of
injunction was void, affect the right of the parties to recover damages.
Parties have the same right to defend against a void, as a valid, writ.
Walton et al. v. Beveling et al. 201.
INSTRUCTIONS.
Of their qualities.
1. SJwuld be applicable to the case. Although instructions may con-
tain correct legal propositions, still it is not error to refuse them if
they are not applicable to the case. Mitchell, Admr. v. The Town of
Fond du Lac, 174 ; Holden v. Hulburd et al. 280.
2. Leaving the jury to decide the late. It is error to give instructions
to the jury which require the jury to find and determine legal propo-
sitions. The court should direct the jury what the law is on the facts
the evidence tends to prove, or instruct them as to what the law is if
they find the facts to be true ; or what facts must be proved before the
plaintiff can recover. Mitchell, Admr. v. The Toion of Fond du Lac, 174.
3. Curing an erroneous instruction by another lohich is proper.
Where one instruction is clearly wrong, and another right, the error
of the first is not cured by giving the latter, as it can not be known
which governed the jury in finding their verdict. Chicago, Burlington
and Quincy Railroad Co. v. Bunn, 385.
4. Where evidence is equally balanced. In an action on a promissory
note, the defendant filed a plea, verified by his oath," denying that he
executed the note. The plaintiff testified that he took the note to
defendant, when the latter said it was all right, and promised to pay
it. This the defendant, in his testimon)', denied, and also denied that
he ever signed the note or authorized any one to sign it for him.
There were no other witnesses in the case: Held, it was not error to
instruct the jury, for the defendant, that, if the evidence was equally
balanced, they should find for the defendant. The instruction is not
586 index.
INSTRUCTIONS. Of their qualities. Continued.
open to the objection, that it tended to mislead the jury into the be-
lief that they were to find for the defendant if an equal number of
witnesses testified on each side, as an equal balance of evidence does
not refer to the number of witnesses, but to the equal weight and
credit of testimony, whether written or otherwise. Bridenthal v.
L MfaML 460.
INSURANCE.
Taxing foreign insurance companies in Chicago.
Act of 1863 authorizing such taxation regaled by act of 1869. See
TAXES, 1, 2.
INTEREST.
Taring private property for public use.
Of interest upon the award of damages, or upon the judgment. See
EMINENT DOMAIN, 5, 6.
JUDGE'S MINUTES.
Not a record. See JUDGMENTS, 1.
JUDGMENTS.
Judge's entry.
1. An order of the judge on his docket for judgment on the ver-
dict of a jury, not entered upon the record, is not a judgment. Ed-
wards v. Etans, 492.
Judgment against a part of several defendants.
2. Under act of 1869. The second section of the act of March 26,
1869, amendatory of the practice act, which provides that, in suits
brought against several defendants, where the plaintiff fails to estab-
lish his case against one or more of the defendants, the plaintifi shall,
notwithstanding, have judgment against the other defendants, applies
only to actions on written contracts. Boehm v. Bahm, 140.
Confession of judgment.
3. 5m vacation* Where a judgment is confessed in vacation before
a clerk in a circuit where that officer is authorized to receive a con-
fession, to be valid under the statute there must be a declaration, a
power of attorney authorizing the confession, and proof of its execu-
tion and a plea of confession filed in the office of the clerk. Tucter
v. Gill, 236.
index. 587
JUDGMENTS. Confession of judgment. Continued.
4. Where there was a power of attorney to confess a judgment on
a note for $26,000, the note was described in the declaration which
claimed $50,000 damages, and the plea of confession admitted an in-
debtedness and confessed judgment for the latter sum, and the clerk
rendered judgment for $26,000 : Held, that the attorney confessing
the judgment exceeded his power; that the clerk did not have power
to deviate from the plea of confession in rendering the judgment. His
doing so was unwarranted and the judgment was Toid, and may be
attacked collatterally. Tucker v. Gill, 236.
5. The clerk has no judicial power but acts ministerially, and
hence can not do otherwise than follow the papers filed in entering a
judgment by confession. He has no power to disregard the plea of
confession and proceed to determine for what sum judgment si
be entered. He must enter judgment for the amount confessed, or
not at all. Ibid. 236.
Entering satisfaction of judgment.
6. In what manner it may be dona. Where an attorney has authori-
ty to discharge judgments for less than the full amount, and in doing
so makes an assignment thereof without recourse, to a third party,
entering on the docket receipts for the amount paid as per assignment,
instead of an entry of discharge, his clients can not complain, for the
acceptance of the money by authority is a satisfaction of the judgments
as to them. Ticker i v. 3f:CleUan et al. 311.
Judgment in attachment.
7. In rem and in personam — how far conciliate as to third persons,
and as between tlie partus. See ATTACHMENT. -1 to 7.
Judgment on an award.
Hoicfar conclusive. See ARBITRATIONS AND AWARDS. 7.
JUDICIAL SALES. See SALES. 1.
JURISDICTION.
In suit for divorce.
1. As to the residence of the complainant. The designation of an ap-
plicant for divorce, in the biii, as "Harriet N. Parker, of the county
of Grundy," is sufficient, on the face of the bill, to give the circuit
court of that county jurisdiction. Parker v. Parker, 369.
588 INDEX.
JURISDICTION. Continued.
Mode of questioning Jurisdiction.
2. It is not proper practice to dismiss a bili upon mere motion, for
want of jurisdiction, unless it appears on the face of the bill. Par*
ker v. Parker, 369.
3. A plea to the jurisdiction, before answer, should be interposed sup-
ported by facts, giving opportunity for rebutting testimony and for
cross-examination. Ibid. 369.
Waiter of objection to jurisdiction.
4. A defendant who, without pleading in the mode prescribed by
the practice in chancery, proceeds to answer over, waives his objec-
tion to the jurisdiction. Ibid. 369.
Court of common pleas of city of Amboy.
5. Of its territorial jurisdiction. The court of common pleas of the
city of Amboy, established by the act of March 11th, 1889, has no
power to send its process beyond the territorial limits of the city.
Dixon v. Dixon, 324.
In attachment.
6. What confers jurisdiction. See ATTACHMENT, 1.
JURY.
Questions of law and fact.
1. As to whether a party uses due care. In an action against a city
to recover for personal injuries received by the plaintiff by reason of
the unsafe condition of a sidewalk, where the evidence showed that
the party Injured was, at the time, walking as he usually did, it is not
error to modify an instruction by striking out a portion of it which
stated that such manner of walking was no evidence of care on the
part of the plaintiff, and it is not error to refuse an instruction which
contained a similar statement. It was not a question of law, but of
fact, to determine whether his manner of walking did, or did not,
prove anything. City of Rockford v. Hildebrand, 155.
2. As to what are necessaries for infants — by whom to be determined.
See GUARDIAN AND WARD, 1.
3. Court may instruct jury how to find in case evidence is equally
balanced. See INSTRUCTIONS, 4.
Assessment of damages for right of way.
4. Bight of trial by jury. See RIGHT OF WAY, 3.
Taking written evidence on their retirement. See PRAC-
TICE, 3.
INDEX. 589
LACHES. See LIMITATIONS.
LANDLORD AND TENANT.
Whether a tenancy exists.
Pending a proceeding to condemn private property for public use. See
EMINENT DOMAIN, 4.
LIENS.
Mechanic's lien.
1. Whether it exists. Where a party contracts to build a house, and
other parties furnish materials, which are used in the building, on the
credit of the contractor, the material-men have no lien on the build-
ing for the materials so furnished. Whetlierill v. Ohlendorf et al. 283.
2. Construction of an agreement — lien must be created under the stat-
ute. Heeney & Campbell furnished, on the credit of a party who had
contracted to build a house for one Gierke, materials which were used
in the building of Gierke's house. When the house was partially
completed, the contractor having abandoned his contract, Gierke ex-
ecuted the following agreement in writing: "This is to certify that
I, H. Gierke, hold myself responsible for all lumber and materials
furnished by Heeney & Campbell for the erection of store on Hal-
sted street and in course of erection, and will pay all of our account
for said store when the building is complete :" Held, that a fair inter-
pretation of the agreement would only bind Gierke to the extent of
materials delivered after its date — the claim that it included all the
materials before that time furnished being answered, by the fact that
there was no consideration expressed in the writing for the undertak-
ing. Ibid.. 283.
3. And if there had been a consideration expressed, it would not
have created a lien on the premises for the materials previously fur-
nished,— as a mechanic's lien, or that of the material-men, being stat-
utory, and peculiar in itself, can only be claimed when the case is
brought within the statute. Ibid. 283.
4. Description of the premises. In a suit in chancer}'- to establish and
enforce a mechanics' lien, it was objected that the description of the
premises was so indefinite and uncertain as to be no guide to the
sheriff in advertising and selling them. In the record the premises
are described as "building No. 181, South Leavitt street, in the city
of Chicago, and further described as lot 8 and 19 in block No. 1 of
Banks' subdivision of lot 9 in block 11 of Rockwell's addition to Chi-
cago." This description Mas held sufficient. Buckley v. Boutellier,
293.
590 INDEX.
LIENS. Mechanic's lien. Continued.
5. And the objection that the congressional subdivisions of the
land were not given in the description, was regarded as frivolous.
Ibid. 293.
6. In favor of sub-contractor. Where a sub-contractor gives notice
to the owner of the building, according to the act of 1869 amenda-
tory of the mechanic's lien law, and the proof shows that such owner
had funds in his hands belonging to the contractor at the time of the
notice, he will be liable in an action b)r the sub-contractor to recover
wages due him for labor on the building. Culver v. Fleming, 498.
LIMITATIONS.
Limitation act of 1839.
1. Whether available in favor of the grantee of a mortgagor as against
the mortgagee. Where the mortgagor of land conveyed the same, and
the grantee complied with all the requirements of the limitation law
of 1839, and when sued he relied upon that statute as a bar: Held, as
against the mortgagee the statute would not apply. Brown v. Devine,
260.
2. This case distinguished from the case of Cook v. Norton, 43 111.
391, and 48 111. 20. In that case it was held that a purchaser from a
judgment debtor, buying after a sale on execution, and within fifteen
months, might set up and rely upon this statute, against the purchaser
under the execution, and that the statute began to run from the time
the purchaser might have obtained his sheriff's deed. In that case it
wras said, if the purchaser had the right to suppose that the purchase
from the debtor was for the purpose of redeeming, he had no right to
so think after the time to redeem had expired. And in that consists
the distinction between the two cases, as in this the mortgagee has no
right to suppose the purchase was made for any other purpose than to
redeem. Ibid. 260.
3. As against a grantee of husband and wife of the land of the latter.
Where a husband and wife joined in the conveyance of the wife's
land, she holding the fee and he an estate by the curtesy, and after the
conveyance was made, a person, under claim and color of title, entered
and occupied the land and paid all taxes for seven successive years:
Held, that the statute operated to bar an entry under either title. Tal-
cott v. Draper, 56.
4. Former decision. This case is distinguished from the case of
Hhortull v. Hincldey, 31 111. 219. In that case, six of the seven years of
limitation had run when the conveyance was made, and another year
INDEX. 591
LIMITATIONS. Limitation act of 1839. Continued.
afterwards, whilst in this, possession was taken and the required acts
under the statute were performed after the conveyance was made.
Talcoit v. Draper, 56.
5. Former decisions — stare decisis. Upon a third appeal in the case
of Cook v. Norton et al., presenting the same questions which had been
previously decided in the same case, as reported in 43 111. 391, and 48
111. 20, the court refused to reconsider the subject, and affirmed the
judgment for the reasons given in the former opinions. Cook v. Nor-
ton et al. 285.
Lapse of time aside from the statute.
6. Delay in asserting fraud. "Where the purchaser of an article
sought to set aside the sale on the ground of fraudulent representa-
tions made by the seller, it was held, that, in addition to the fact that
the plaintiff failed to make out the fraud alleged, the fact that, for sev-
eral years after the making of the contract, it was acted upon by the
purchaser and his representatives, with a knowledge of all the facts,
and treated as still subsisting, afforded an additional reason why a court
of equity should not interfere. Warren et al. v. Walbridge, Admr. et al.
173.
7. Delay in questioning a sale under a power in a mortgage. See
SALES, 5, 6.
MARRIED WOMEN.
Conveyance of their real estate.
1. The husband must join. Instead of proceedings by fine or com-
mon recovery under the common law, the interest of a wife in real
estate may be conveyed by deed of herself and husband. This can be
done only in the precise mode prescribed by the statute. Otherwise
such conveyance is void. Dressier et al. v. Kent, 426.
2. A mortgage or trust creating an incumbrance upon the lands of
the wife, in which the husband does not join, is void, and will not be
enforced, even though given to secure payment of a note made by her-
self and her husband for his debt. Ibid. 426.
3. The act of February 21, 1861, "to protect married women in their
separate property," does not go to the extent of authorizing married
women to sell real estate without concurrence of the husband. Such
power can not be implied, but must be given *in direct terms. Ibid.
426.
592 index.
MARRIED WOMEN.
Conveyance op their real estate. Continued.
4. Former decision. The doctrine of equity, as to a. married
woman's disposing power over her* separate property, was carried fur-
ther in the case of Young and Wife v. Graff, 28 111. 20, than the author-
ities seem to warrant. Ibid. 426.
MASTER AND SERVANT.
Liability op master for injury to the servant.
1. Of notice to a railway company of a defective bridge. In an action
against a railway company to recover damages for the death of one of
its employees, alleged to have been occasioned by the falling of a
bridge, an instruction which informs the jury that, if the deceased was
in the employment of the company, was in the line of his duty when
crossing the bridge, that the timbers of the bridge were decayed and
unsafe, and by reason thereof broke down, and the death of such em-
ployee was occasioned thereby, the company was liable, is erroneous,
because it excludes notice of the condition of the bridge to the em-
loyees of the company, or that they, by the highest degree of dili-
gence consistent with the operation of the road, might have known of
the defects. A railroad company is bound to use such diligence, yet it
is not an absolute insurer and can not be held liable for defects that
such diligence would not detect. Toledo, Peoria and Warsaw Railway
Co. v. Conroy, 162.
2. Actual knowledge of such defects is not necessary to render a
railway company liable; it is enough if the company might, by the
use of such diligence, have been informed, but when it did not know
and could not have learned the timbers were defective and unsafe by
such diligence, it can not be held responsible. Ibid. 162.
3. Where an employee of a railroad company is assisting in removing
damaged cars. Where a railroad company are in the habit of con-
stant^ taking damaged cars from one station to another for repair, and
a person is employed to couple and switch such cars, and while so
engaged he is injured in attempting to couple a car to the train, by
reason of the broken condition of the car: Held, that the presumption
is that lie undertook the employment subject to all of the risks inci-
dent to the place, and that this was one of the risks he expected to
incur when he accepted the employment. Chicago and Northwestern
Railroad Co. v. Ward, 130.
4. It is the duty of a railroad company to furnish a safe road and
safe machinery, and on failing to do so it becomes liable for injury to
an employee therefrom if he is ignorant of the defects, and therefore
INDEX. 593
MASTER AND SERVANT.,
Liability of master for injury to the servant. Continued.
not contracting with reference to thern. But that rule does not apply-
where the emplo3rment is for the purpose of assisting in hauling ma-
chinery that is defective, and is injured when a defective car is on the
way to the proper shops for repairs, and the existence of the defect
implied no negligence on the part of the road. Chicago and North-
western Railroad Co. v. Ward, 130.
5. An instruction which informs the jury that the company is lia-
ble if the employee was injured whilst in the careful discharge of his
duty, by a car being out of repair through the failure of the company
to see that it was in repair, is wrong, as the car was being removed to
the proper place expressly to be repaired, and the employee was in
the discharge of the duty he engaged to perform in coupling it for the
purpose. Ibid. 130.
6. As to negligence of another employee. If it had appeared clearly
that it was the custom of the company to mark all damaged cars be-
fore sending them to the shop to be repaired, and that the marks used
indicated that they were damaged, and also the time, manner and per-
son who made the mark, and this duty had been neglected, and the*
employee had been thereby thrown off his guard in coupling the car,
then a different question might have been presented. Ibid. 130.
Municipal corporations.
7. Liability for acts of servants, agents and contractors. A contract
for work in the erection of a public building by a city, to be performed
under the direction and supervision of a board of public works and
superintendents, fixes the liability of the corporation for injuries re-
sulting from negligence in the manner of doing the work. City of
Chicago v. Dermody, 431.
8. It is no defense that the contractor abandons the plan prescribed
and substitutes his own without consent, for it is the duty of the cor-
poration to see that the work be well done, but according to the spe-
cifications. Ibid 431.
9. The same rule applies, in such case, to the city as is applied to
master and servant. The cit}% by retaining charge of the work, must
be held responsible for the manner in which it is performed. The con-
tractors are the servants of the city, and the doctrine of respondeat su-
perior applies. This case falls fully within the case of The City of
Chicago v. Joney, 60 111. 383, and is governed by it. Ibid. 431.
Where one is employed for a certain time.
10. And not allowed to fulfill his engagement — extent of his remedy.
See MEASURE OF DAMAGES, 2.
38— 6 1st III.
594 INDEX.
MEASURE OF DAMAGES.
Agent against his principal, for wages.
1. Where the former has been prevented from serving the term of his
employment. In an action by an agent against his principal to recover
wages for the term for which he had been employed, an instruction
informed the jury that if defendant employed plaintiff for a specified
time, and defendant committed a breach of the contract whereby
plaintiff was prevented from serving for the period he was employed
and he thereby suffered loss, he was entitled to recover the salary
which defendant agreed to pay for the time for which he was hired,
less the amount of net earnings the evidence showed he had made
during the time for which he was hired: Held, in view of the evi-
dence before the jury, that this instruction could not have misled the
jury and worked no wrong to defeudant. Freller v. Little, 21.
2. Where there is an engagement of a person to render services for
a specified time, and the employer violates the agreement and pre-
vents its fulfillment, he is liable for the Avages during the time, and it
is for him to prove that plaintiff has been actual!}' employed in other
profitable business, or that such employment had been offered to and
rejected by him, to entitle him to a reduction of damages. And
where a defendant fails to prove that the plaintiff was or could have
been so employed, and the evidence is vague and indefinite as to
plaintiff's earnings during the time, so that the jury could make no
estimate of the amount, the judgment will not be reversed because no
deduction was allowed. Ibid. 21.
MECHANIC'S LIEN. See LIENS, 1 to G.
MERGER.
Op tiie fee, and estate by the curtesy.
1. Where a husband and wife joined in the convej^ance of land in
which the latter held the fee and the former an estate b)' the curtesy,
both the fee of the wife and the (.-state by the curtesy merged and
became united in the purchaser by the conveyance from the husband
and wife. As a general rule, where two estates are conveyed to a per-
son, the smaller is merged into the greater, and especially so when the
interests of third persons are not affected thereby. Talcott v. Dra-
per, 56.
MISTAKE.
In an accounting between parties. See ACCOUNTING, 1.
INDEX. 595
MORTGAGES.
Chattel mortgages.
1. Acknowledgment of chattel mortgage — before officer interested. A
chattel mortgage acknowledged before one of the mortgagees who is a
justice of the peace, is void as to other mortgage creditors, for it is
against the policy of the law that any officer should perform either a
ministerial or a judicial act in his own behalf. It would be no answer
to this objection that such mortgagee was the only justice in the town-
ship. Hammers et al. v. Dole et al. 807.
2. Officer wanting. Where there is no such officer as the statute
prescribes for taking the acknowledgment of a chattel mortgage, or if
he be incompetent, the parties will be remitted to their rights at com-
mon law, under which all sales of personal property, unaccompanied
by possession in the vendee, are absolutely void. Our statute has only
changed this rule so as to permit the mortgagor to retain possession
where the mortgage, properly acknowledged and recorded, provides
for it. Ibid. 307.
3. Of the mortgagor retaining possession of the property. A chattel
mortgage provided for the mortgagor to retain possession of the prop-
erty. On the day the mortgage matured, without the mortgagee tak-
ing possession of the property, the time of payment of the debt se-
cured thereby was extended, and, at the same time, the old note was
surrendered and a new mortgage was executed and a new note was
taken for the old debt and accrued interest and a small additional ad-
vancment of money : Held, that the neglect of the mortgagee to take
possession of the property rendered the first mortgage void as to cred-
itors, and the lien of the second mortgage was subsequent to that of
an execution against the mortgagor which came to the hands of th-e
officer after the execution of the first mortgage, but before the execu-
tion and recording of the second. Burnham v. Midler, 453.
4. When the first mortgage ceased to be operative as to the rights
of creditors by reason of the failure of the mortgagee to take posses-
sion of the property, the lien of the execution then attached and re-
lated back to the time when the officer received it. Ibid. 453.
5. While a chattel mortgage providing for the mortgagor to retain
possession of the property may be made, under our statute, so as to be
valid for two j-ears, yet, where the parties fix the time for less than
two years, the time so fixed must control as to when the lien shall
cease to operate. And if the mortgagee neglect to reduce the prop-
erty to possession upon default of the mortgagor, or within a reason-
able time thereafter, to be determined by the situation of the parties,
he loses his lien as against the rights of third persons, and, as affecting
the interests and liens of sueli, the mortgage becomes a void instru-
ment. Ibid. 453.
596 INDEX.
MORTGAGES. Chattel mortgages. Continued.
6. The lien of a chattel mortgage is not lost because the mortgagee
fails to take possession of the mortgaged property on the maturity of
the first of a series of notes secured by the mortgage, as he might do
under its provisions, but the lien continues until the last payment falls
due. It is optional whether the mortgagee will reduce the property to
possession on default in the payment of any but the last installment.
Cleaves v. Herbert, 126
«
7. Mortgagor retaining and using stock of liquor*. Where the
mortgage describes the property as a "stock of goods," and provides
that the mortgagor may retain and use the same until default in pay-
ment : Held, that the use of the goods, consisting of liquors, etc.,
does not necessarily imply that the mortgagor may sell the same,
although he was a trader in liquors; that wines and liquors are fre-
quently kept in store to improve by age, as one of their uses by the
owner. Ibid. 126.
8. Foreclosure in chancery. Where there are several successive
liens and incumbrances on the same property, so that a foreclosure, by
sale in the ordinary way, could not be made without injury to the ad-
verse claimants, a court of equity may properly be called upon to
determine and adjust the- rights and equities of the parties. Hammers
et al. v. Dole et al. 307.
9. The principle would remain the same even if the bill alleged all
the mortgages and liens to be void except those of the complainants,
since that would compel the court to determine as to the different
liens. And if, on the hearing, such an allegation should prove true, it
would be inequitable then to dismisss the bill, involve the complain-
ants in costs, and remit them to their remedy at law. Ibid. 807.
Subsequent grantee by quit-claim deed.
10. Eight of redemption by mortgagor. He who, accepting a quit-
claim deed, knowing of a former incumbrance, does not cancel that
incumbrance on paying it off, but takes an assignment of it to himself,
furnishes the presumption that he considers himself holding as a
creditor rather than a bona fide purchaser, and keeps the way open for
a redemption by the original mortgagor. Morgan v. Clayton, 35.
Holder under defective title.
11. When considered a mortgagee. The holder under a defective title,
though with notice, may be held a mortgagee in possession, and be
entitled to repayment of advances made in good faith and expended
in improvements. Ibid. 35.
INDEX. 597
MORTGAGES. Continued.
Of the relation between mortgagor and mortgagee.
•
12. When the former is left in possession, and herein, of tlie remedy of
the mortgagee where there is a collusive surrender of possession by tlie
mortgagor to a third person. See FORCIBLE ENTRY AND DE-
TAINER.
MUNICIPAL BONDS. See SUBSCRIPTION.
MUNICIPAL CORPORATIONS.
Safety of highways.
Duty and liability of cities in that regard. See HIGHWAYS, 7
to 11.
OF TnEIR POWER TO BORROW MONEY.
Except upon a vote of tlie people. See CORPORATIONS, 6.
Liability for acts of agents and contractors. See MASTER
AND SERVANT, 7, 8, 9.
NEGLIGENCE.
Of comparative negligence.
1. Where, in a suit to recover for injuries sustained by a col-
lision with a railroad train, and, from the evidence, it is contended
there was negligence on both sides, and that is the principal contest
before the jury, it is error for the court to instruct the jury that the
plaintiff may recover if there was negligence on the part of the ser-
vants of tlie company, unless the plaintiff was guilty of more care-
lessness than the servants of the company. In such casts, if both
parties are guilty of negligence, and it appears that of the plaintiff is
slight, when compared with that of the defendant, a recovery may be
had. Chicago, Burlington and Quincy Bailroad Co. v. Dunn, 3S5.
2. An instruction is not correct which informs the jury that a
plaintiff in such a case may recover, if the negligence of the defend-
ant is greater than his. In such a case, to recover, there must be
more than a mere preponderance against the defendant ; his must be
great, and plaintiffs slight, when compared. Ibid. 385.
Negligence in railroads.
3. Degree of care required as to persons who are not passengers. Car-
riers of persons are bound to use the highest degree of care and dili-
gence consistent with the practical exercise of the business of carriers,
and a person not a passenger is entitled to no higher degree of care
598 INDEX.
NEGLIGENCE. Negligence in railroads. Continued.
from them than a passenger; and in such a case it is error to instruct
the jury that the employees of the road were bound, as far as possible,
to prevent injury to a person about crossing the track in front of a
train. Chicago, Burlington and Quincy Railroad Co. v. Dunn, 385.
Liability of municipal corporations.
4. A city erecting a public building, or making an improvement
in a negligent manner, is liable for resulting injury. City of Chicago
v. Dermody, 431.
Public highways in cities.
5. Duty and liability of the corporations in regard to their safety.
See HIGHWAYS, 7 to 11.
Master and servant.
6. Liability of a city for injuries resulting from negligence of its ser-
vants, agents and contractors. See MASTER AND SERVANT,
7, 8, 9.
7. Liability of a railroad company for injuries received by an em-
ployee while in the discharge of his duties. See MASTER AND SER-
VANT, 3 to 6.
NEW TRIALS.
Conflict of testimony.
1. Credibility of witnesses. When evidence is contradictory, involv-
ing the credibility of witnesses, the question is one peculiarly for the
jury, and their verdict should not be disturbed. Carey v. Henderson
et al. 378.
2. Where a case is fairly left to the jury, under proper instructions,
and the evidence is conflicting, both parties being sworn, and the evi-
dence objected to and admitted, even if irrelevant, could not have affect-
ed the verdict, a new trial will not be granted. Bestor v. Moss et al.
497.
3. An appellate court will not say a jury has disregarded an instruc-
tion when the evidence is conflicting, and it is a fair question for the
jury to determine whether they shall believe the witnesses on the one
side rather than the other; nor will the court say that the witness was
impeached because other witnesses testified to contradictory statements
said to have been made by him, especially when the contradicting wit-
nesses are not positive in their testimony, and the witness sought to
be impeached is corroborated by other evidence. City of Oalesburg v.
Htgley, 287.
INDEX. 599
NEW TRIALS. Continued.
To LET A PARTY IN TO DEFEND.
4. Where a mere conflict of evidence would arise. The defendant in
this case was served after the return clay of the summons, and retained
an attorney to defend. A new summons was ordered and the cause
continued. The attorney, at the next term, filed a plea and proceeded
to trial. After judgment, defendant entered a motion for a new trial,
and showed, by affidavit, that he had not been served with the alias
summons, and that he had a defense, detailing facts, which, if proved,
would have presented a conflict of evidence. The court overruled the
motion : Held, that the court did not err. O'Brien v. Haynes, 494
Verdict against the evidence.
5. Although a judgment might not be reversed where the verdict is
based upon the evidence of a plaintiff contradicted bythe evidence of
a defendant, and neither supported b}^ other testimony, yet the court
will reverse when the verdict rests alone on the testimony of the plain-
tiff, and he is positively contradicted by the defendant, who is corrob-
orated by an unimpeached witness. Such a verdict can not be sus-
tained. To sustain his verdict, the plaintiff must have made out his
case by proof. Peaslee v. Glass, 94.
Excessive damages.
6. In an action against a city to recover for personal injuries re-
ceived by the plaintiff bj^ reason of the unsafe condition of a sidewalk,
it appeared one of the hands of the plaintiff was paralyzed, and could
not be used, the evidence failing to show that it would probably be
restored. The plaintiff was dependent upon his labor for the support
of himself and family : Held, a verdict for $3000, while it was consid-
ered large, was not so excessive as to require a reversal for that cause.
City of Calesburg v. Eigley, 287.
Newly discovered evidence.
7. Where it appears, from the affidavits filed in support of a mo-
tion for a new trial because of newly discovered evidence, that it is
only cumulative and indecisive, a new trial should not be granted.
Fuller v. Little, 21.
8. Where the newly discovered evidence is inconclusive in its char-
acter, and such as, if it had been heard on the trial, and the verdict
against it, the court would not have set the verdict aside, a new trial
should not be granted, that it might be admitted before another jury.
City of Chicago v. Hislop, 86.
Impeachment of witness.
9. It is only under very peculiar circumstances that a newT trial will
be granted to enable the impeachment of witnesses. Ibid. 86.
600 INDEX.
NEW TRIALS. Continued.
Undue influence upon a jury.
10. Having a newspaper in the jury room. The presence in a jury
room, through inadvertence, of a newspaper containing matter of a
nature to influence the jury, is not cause for setting aside the verdict,
after affirmative proof that it was not read by them or in their hear-
ing. City of Chicago v. Dermocly, 431.
New trial in ejectment. See EJECTMENT, 4.
NOTICE.
Possession op land, as notice.
1. Where a person is, and for thirty years has been, in the open and
visible possession of a tract of land as his farm and residence, that pos-
session is notice to all the world that he has some interest in the laud;
and whoever buys it while that possession continues, takes it subject
to that interest, whatever it may be. Flint v. Lewis, 299.
Purchaser by quit-claim deed.
2. How far chargeable with notice. And in such a case, where one
half of the land lay within four miles of a thriving and populous city,
and the other half much nearer, and was sold under a trust deed at the
rate of $100 for each forty acres, which facts were recited in the deed
made by the trustee, a second purchaser, who buys the land a few days
later, taking a quit-claim deed in which the expressed consideration is
$1000, is chargeable with notice of all the facts recited in or shown by
the deed from the trustee. Ibid. 299.
Inadequacy of price.
3. As affording notice. And in such a case, where the last purchaser
claims to have bought in good faith without notice, and yet lived at
the time within four miles of the land, which was then worth $50 an
acre, his claim must be denied, since it is wholly unnatural to suppose
that he made the purchase without knowing where the farm was situ-
ated, its general character and value ; and the fact that a farm worth
$4000 had been lately sacrificed for $200, would suggest to any man
of ordinary judgment that there was some mistake, or some over-
reaching, in the transaction, sufficient to put him upon inquiry, and
his failure to make such an inquiry is equivalent to notice. Ibid. 299.
RESCISSION OF CONTRACTS FOR FRAUD.
4. Whether notice required. See CONTRACTS, 13.
Notice as to special assessments.
5. In the City of Chicago. See SPECIAL ASSESSMENTS, 4,
5,11.
INDEX. 601
NOTICE. Continued.
Unsafe condition of highways in cities.
6. Notice to the city authorities, when implied. See HIGHWAYS, 12.
Election for municipal subscription.
7. To stock of railroads—requisites of the notice. See SUBSCRIP-
TION, 2.
Condemnation of right of way.
8. Of the notice required. See RIGHT OF WAY, 1.
OFFICERS.
Town supervisor.
1. Authority to employ counsel to defend suits against the town. The
4th section of article 12 of the act of 20th of February, 1861, entitled
"An act to reduce the act to provide for township organization, and
the several acts amendatory thereof, into one act, and to amend the
same," provides that, "in all legal proceedings against the town, by
name, the first process, and all other proceedings required to be
served, shall be served on the supervisor of the town. And whenever
any suit or proceeding shall be commenced, it shall be the duty of the
supervisor to attend to the defense thereof, and to lay before the elec-
tors of the town, at the first town meeting, a full statement of such
suit or proceeding for their direction in regard to the defense there-
of." Held, under the provisions of such section, the town supervisor
has authority to employ an attorney to defend a suit against the town',
and the town will be liable to pay for the services thereof a reasonable
compensation. Cooper et al. v. Town of Delavaji, 96.
2. It is still the duty of the supervisor, although he may employ
counsel, to call a town meeting and lay the whole case before the vo-
ters, with the legal advice he may have received, for their direction.
Ibid 96.
3. And at such a meeting the voters may, if they choose, dispense
with or continue the services of the attorney, the town still remaining
liable to pay a reasonable compensation to the attorney for the ser-
vices already rendered. Ibid. 96.
4. But the neglect of duty on the part of the supervisor to take
steps to call such meeting, or a refusal of the officers and voters to call
the meeting, should not prejudice the attorney. Ibid. 96.
602 INDEX.
PARENT AND CHILD.
Right op the former to dispose of his property.
1. The owner of property has a right to convey it to whom he
pleases, there being no creditors; he may impose conditions upon any
one of his grantees, to make the deed to him inoperative; lie may
judge who are the proper objects of his bounty, and, if free from in-
sane delusion or senile dementia, passing by his own children, give it
to aliens to his blood. A child has no natural right to the estate of
his father — no such right as can be asserted against the testamentary
disposition of the estate by the father. Uhlich v. Mulilke et al. 499.
PARTIES.
In suit against a carrier.
1. For loss of goods. Where a transportation company gives a
shipping receipt for the transportation «f goods from one place to
another, and they are lost, the person to whom the shipping receipt is
given may bring the action, although the property m&y belong to
another. Northern Line Packet Co. v. Shearer, 263.
In chancery.
2. In a suit respecting church property. Where the minorit3r of a
church organization seek to arrest a contemplated or correct an ac-
complished perversion of the trust under which the church property
is held, the bill should be filed by the persons composing the minor-
ity in their individual names; or, if the parties be numerous and all
stand in the same situation, having a common right or interest, then
two or three, or more, may sue in their own names for the benefit of
all. Lawson et al. v. Kolbenson et al. 405.
3. But when the acts of the trustees, confirmed by a majority of
the church, constitute the alleged perversion, then, inasmuch as such
trustees and majority of the church represent the corporation, their
acts must be regarded as the acts of the corporation, and the corpora-
tion is a necessary party, for it would not be bound unless made a
party in its corporate character. Hence, if not complainant, it must
be made defendant. Ibid. 405.
PAYMENT.
Voluntary payment.
1. Can not be recovered back. Owners of propcrt}' having paid as-
sessments which are subsequently set aside, can not recover it back,
such payment being deemed in law voluntary. Union Building Asso-
ciation V. City of Chicago, 439.
INDEX. 603
PAYMENT. Continued. .
Application of payments.
2. Where a note was indorsed by the payee after its maturity,
an}' amount, either in money or property, which by agreement be-
tween the payee and the maker, or by direction of the maker, was re-
ceived by the payee before the transfer, to be applied on the note,
should be allowed as a discharge pro tanto on bill by the indorsee to
foreclose a mortgage securing the note. (Sramer et al. v. Willetts, 481.
PERSONAL PROPERTY.
Leasehold interest.
Warehouse on railroad right of way. See TAXES, 3.
PLACITA.
Of its place in the record. See CONVENING ORDER.
PLEADING.
Of the declaration.
1. In an action on the case for fraudulently representing a person to
be worthy of credit. Where the declaration in an action for deceit in
falsel}r representing a third person fit to be trusted, averred that the
defendant intended fraudulently to deceive and injure the plaintiff,
and that the representations made by him were falsely, fraudulently
and deceitfully made, and defendant well knew the parties were not
fit to be trusted : Held, that this declaration was substantially good,
although, in the averment negativing the truth of the representations,
it is not averred that the defendant knew them to be false, and it was
error to sustain a demurrer to such a- count in a declaration. Farwell
et al. v. Metcalf 372.
2. Counts which aver that the representations were made with in-
tent to deceive and defraud the plaintiff, but omit to aver in terms that
defendant knew the insolvency of the parties to whom the credit was
given, are substantially good, and are not obnoxious to a demurrer.
Such words import knowledge. Ibid. 372.
3. Against a railroad company for killing stock. In an action
against a railroad company to recover the value of a horse killed by
by the defendant's train of cars, it was averred in the declaration,
which contained but one count, that, on the 1st of December, 1807,
the defendant was possessed and had entire control of the St. Louis,
Jacksonville and Chicago Railroad, a portion of which was then run
and operated in said county. It was then averred that, at the time
604 INDEX.
PLEADINO. Of the declaration. Continued.
aforesaid, it became aud was the duty of the defendant, its agents, em-
ployees and servants, carefully and skillfully to run and operate said
road in and through said county, and that said defendant, by its em*
ployees, agents and servants, so carelessly, negligently and unskill-
. fully run and operated said road, in the pursuit of their duties as such
employees, etc., that, at the time and place aforesaid, they opened the
close in which a certain horse of plaintiff was confined, and carelessly
and negligently left the fence surrounding said close down, by reason
of which negligence and carelessness on the part of the defendant, its
employees, etc., the horse aforesaid escaped from said close, the horse
being the property of the plaintiff, and of the value, etc., and at the
time and place aforesaid strayed and got on said railroad) and the de-
fendant, by its servants, etc., on the day aforesaid, so conducted and
directed the locomotive and train of defendant on said railroad, that
the locomotive and train aforesaid struck the horse, he being on said
railroad by and through the neglect of defendant in opening the close
in which the horse was confined, and leaving the fence down> con-
cluding by alleging the killing of the horse and prayer for damages.
Upon a demurrer to the declaration that it was insufficient because of
the want of an allegation of time and place when and where the injury
was committed, it was lield, such objection was not tenable, as the acts
complained of are referred to the 1st day of December, 1867, on which
clay the railroad was being operated by the employees of the defend-
ant, and the place being distinctly averred to be at the county afore-
said. St. Louis, Jacksonville and Chicago Railroad Co. v. KilpatrickH
457. '
4. In an action on an insurance policy — to show an assignment of the
policy. The plaintiff brought suit on a policy of insurance, payable
to third parties who were the assured, upon the back of which was
indorsed ; " Loss, if any, under this policy is hereby made payable to
the Tieasury Bank of Chicago, as its interest may appear." Signed,
"J. Farmer, Sec'}'." The declaration set out the policy in ho3c verba,
without any averment that the indorsement was made by the com-
pany, or that the assured had requested or consented to it: Held,
that the declaration failed to show any right of action in the bank,
and was bad on motion in arrest of judgment. Commercial Ins. Co. v.
Treasury Bank, 482.
Defects cubed by verdict.
5. If a canst; of action be stated^ though ambiguously and defect-
ively, a general verdict will cure the defect; but where there is no
statement of any cause of action or right in the plaintiff' to maintain
the suit, the omission will not be cured by the verdict. Nothing will
INDEX, 605
PLEADING. Defects cured by verdict. Continued.
be presumed after verdict but what is expressly stated in the decla-
ration, or is necessarily implied from the facts which are stated.
Commercial Ins. Co. v. Treasury Bank, 4825.
Plea of fraud.
6. To induce subscription to. stock of railroad company. Where a
plea in an action upon a note given upon a subscription to the stock
of a railroad company, averred that the inducement to subscribe for
such stock was to procure a competing line to another named roatl, and
the agent at the time represented that the road should remain a com-
peting line, but when completed it was leased to the competing road :
Held, this plea was bad on demurrer, as it fails to aver that the agent
falsely and fraudulently made the representations. Fraud must be
pleaded and proved. Hays v. Ottawa, Oswego and Fox Biver Valley
Railroad Co. 422.
Certainty.
7. Pleadings must be certain, and if not, from omission of essential
portions, the court can not supply such parts. Truitt v. Oriffin, 26.
Pleadings in garnishee proceedings. See GARNISHMENT, 3.
Pleading in chancery. See CHANCERY, 1 to 4.
PLEADING AND EVIDENCE.
Allegations and proofs.
1. Must correspond. Where a declaration averred, in a suit on an
appeal bond, that the defendants had not paid the judgment recovered
before the justice, nor the costs of the circuit court on the dismissal
of the appeal, amounting to $11.45 — the fee bills showed $11.05 costs
in the justice's court, and $7.45 in the circuit court — either of these
sums being variant from the amount set out in the declaration — and
as it was a matter of description of the judgment appealed from, it
was error to admit it in evidence. Smith et al. v. Frazer et al 164.
2. The plaintiff need not prove more than is expressly stated in
his declaration, or is necessarily implied from those facts which are
stated. Commercial Ins. Co: v. Treasury Bank, 482.
3. As to the theory of a bill in chancery. Where a bill in equity is
framed on the theory that there was fraud entitling the complainant to1
relief, and the proof fails, complaiuant can not shift his ground and
have relief on other grounds upon which the bill does not proceed.
Vennum v. Vennum, 331.
606 INDEX.
PLEADING AND EVIDENCE. Continued.
IN ACTION EX CONTRACTU AGAINST SEVERAL.
4. Joint promise 7iiu st be shown. In an action ex contractu against
several, there can be do recovery unless a joint promise or liability is
proved. Tedrick et al. v. Hiner, 189.
In case of ax amendment op a bill in chancery.
5. Where a person planted a live fence in the line of a public high-
way, and erected upon the highway a protection fence therefor, it was
hdd, where he files a bill in equity to restrain the removal of such pro-
tection fence, and, by mistake, alleges in his bill that the road- was es-
tablished four rods wide, and afterwards, by leave of court, amends his
bill, and charges that the road was, in fact, established but fifty feet in
width, the first allegation does not estop him from showing he was
prosecuted for obstructing the road that was but fifty feet in width.
Harding v. Town of Hale, 192.
IX REPLEVIN — PLEA OP PROPERTY LX DEFEXDAXT.
6. Evidence thereunder. Under a plea of property in the defendant
in an action of replevin, a chattel mortgage, the conditions of which
have been broken, is admissible in evidence. Such a mortgage is suf-
ficient to enable the mortgagee to recover the property in an action of
replevin. Cleaves v. Herbert, 126.
POSSESSION.
Actual possessiox — what constitutes.
1. Entering upon land, partial fencing and slight cultivation, cut-
ting timber, and exercising continuous public acts of ownership, con-
stitute actual possession, which the courts will protect. McLean v.
Farden et al. 106.
AS AGAINST AN INTRUDER.
2. Such possession may be maintained in an action of trespass quare
clausum f regit against a party intruding without paramount title. In
the absence of title on either side, priority of possession prevails.
Ibid 106.
3. Legal possession, as strictly defined, is not necessary fb a party
in actual possession, even though wrongfully acquired, to constitute a
defense against a mere intruder not having a better title. Ibid. 106.
4. The person having the actual possession will be deemed the true
owner until the contrary is made to appear. Whoever would dispute
that possessory right, can only do so by exhibiting paramount title.
Ibid. 106.
Notice, by possession of land. See NOTICE, 1.
INDEX. 607
PRACTICE.
Trial — dismissal for want of prosecution.
1. Withdrawal of attorney from t7ie case. Where the plaintiff's at-
torney is in court, and, without reasons, objects to a trial of the cause,
the other party may insist upon a trial, and the court has no power to
dismiss the suit for want of prosecution, as in case of a non-suit, be-
cause the plaintiff, being present, must elect to take a non-suit, or the
cause must go to trial. Delano v. Bennett, 83.
2. If, when the cause is called for trial, the plaintiff does not appear,
the court may dismiss the suit for want of prosecution, and render
judgment as in case of non-suit. The withdrawal of counsel from the
case is not a withdrawal of the case from the court. Ibid. 83.
Jury taking written evidence to their room.*
3. A jury, on their retirement, were permitted to take a portion of
the written evidence introduced on the trial, but the court refused the
application of the defendant to permit them to have the other written
evidence. Without deciding as to the propriety of the course pursued
in permitting the jury to take with them written evidence, this court
holds that the action of the circuit court in that respect was unjust to
the defendant ; that all the written evidence should have been taken
by the jury, or none. Rainfortli v. Tlie People, 365.
Bill of particulars.
4. Under plea of set off — waiver. Where a plaintiff goes to trial
where a plea of set-off has been filed, but no bill of particulars is fur-
nished, and no objection is made, he thereb}1- waives a bill of particu-
lars, and can not rely upon such omission as error. Eddie v. Eddie,
134
Plea of set-off — judgment against the plaintiff.
5. Under the 14th and 19th sections of the practice act, where
there is a plea of set off, and the proof warrants it, the jury may find
a verdict against the plaintiff and the court may render a judgment
on it. Ibid. 134.
Time for making certain objections.
That an award is not certain or final. See ARBITRATIONS AND
AWARDS, 5.
Defective appeal bond, on appeal from county court to circuit court —
wlien to be objected to. See APPEALS AND WRITS OF ERROR, 3.
Questions of law and fact. See JURY, 1, 2, 3; INSTRUCTIONS,
2,4.
•See Smith ct ux. v. Wise, Stigleman tfc Co. 58 111. 141.
608 INDEX.
PRACTICE. Continued.
Time and mode of receiving a verdict. See VERDICT, 1, 2.
Practice in chancery.
Mode of questioning sufficiency of plea. See CHANCERY, 4.
PRACTICE IN THE SUPREME COURT.
Error as to one— reversal as to all.
1. Where judgment is rendered against two in an action ex con-
tractu, and the entire proof fails to show any liability as to one of the
defendants, the judgment will be reversed as to both. Qoit et al. v.
Joyce et al. 489.
Reversal with special directions.
2. Effect of a subsequent reversal. Where the judgment of the court
below upon demurrer to the plaintiffs declaration was reversed, with
special direction to the court to render judgment in favor of the plain-
tiff upon the demurrer and take an inquest of damages, and where
the second judgment entered under the remanding order was reversed
at the suit of the defendant below, it was 7ield, that the subsequent re-
versal abrogated the direction given in the first order of reversal, and
that the defendant was entitled, on a showing, to plead to the merits.
Edwards v. Evans, 492.
Rehearing.
3. Of raising new questions. Where a case has been argued and
decided on the points presented, a rehearing will not be granted on new
questions raised for the first time in the petition, unless it be to pre-
vent manifest injustice. Fuller v. Little, 21.
PRINCIPAL AND AGE*tfT. See AGENCY.
PROCESS.
Alias writ op replevin.
1. Where the defendant in an action of replevin is not served, or
is improperly served, the suit must be continued and a second writ
issued the same as in any other form of action. O'Brien v. Haynes,
494.
Service after the return day.
2. Where a writ or summons is served after the return day, the ser-
vice will be a nullity, and will not give the court jurisdiction of the
person of the defendant. Ibid. 494.
INDEX. 609
PROCESS. Continued.
Service by special deputy. %
3. The authority of a special deputy sheriff to serve a summons,
under the act of March 25, 1869, must be by written appointment of
the sheriff. Illinois Land and Loan Co. v. McCormick et al. 322.
Defective service.
Cured by appearance. See APPEARANCE, 1.
PROMISSORY NOTES.
Omission op the word " dollars."
1. Where a person, by a writing in the form of a note, promises to
pay the person named " one hundred and ninety-one, fifty cents,
for money borrowed :" Held, that this was a promissory note for the
sum of $191.50, and that the presumption will be indulged that the
word "dollars" was unintentionally omitted when the note was drawn.
Beardsley v Hill, 354.
PURCHASERS.
Purchaser at voidable sale.
1. Whether protected. A purchase at an unauthorized and voidable
sale must be bona fide, for a valuable consideration, without notice of
existing equities, or collusion, or it will be set aside. Morgan v. Clay-
ton, 35.
2. Presumption of fraud. Where the purchaser is of kin to the
wrongful seller; takes title without the usual preliminary negotiation
as to price and terms of sale ; when payments are nominal and not
provided for in the usual manner, and the vendor is left in control of
the property— there is strong presumption of collusion and fraud.
Ibid. 35.
QUIT-CLAIM DEED. See CONVEYANCES, 1.
QUO WARRANTO.
When the proper remedy.
1. To try title to an office. Where parties have been de facto elected
to a corporate office, have accepted and acted in the same, the validity
of their election can outy be tried by a proceeding or information in
the nature of a quo warranto. Nor can the title to an office, in such a
39— 61st III.
010 INDEX.
QUO WARRANTO. When the proper remedy. Continued.
case, be decided in a collateral suit ; it must be by a direct proceeding.
Lawson et al. v. Kolbenson et al. 405.
2. Against church trustee. It is the settled law of tliis country that
an information in the nature of a quo warranto will lie against one
who intrudes himself into the office of trustee of a church corpora-
tion. Ibid. 405.
RATIFICATION.
Where attorney has authority.
Ratification noi necessary. See ATTORNEY AT LAW, 3.
REDEMPTION.
Subsequent grantee by quit-claim deed.
Who procures an assignment to him of a prior mortgage — right of tlie
mortgagor to redeem. See MORTGAGES, 10.
REHEARING.
In the supreme court.
Of raising new questions thereon. See PRACTICE IN THE SU
PREME COURT, 3.
RELEASE.
Release of surety.
Extension of time to the principal. See SURETY, 1.
RELIGIOUS ASSOCIATIONS. See CHURCHES AND CHURCH
PROPERTY.
REMEDIES.
Of restrictions as to a remedy.
1. And herein, of the court furnishing a remedy where that prescribed
by statute is unconstitutional. Courts will not impute to the legisla-
ture the intention of nullifying the judgments and decrees of courts
of general jurisdiction in advance, when it would be beyond the con-
stitutional power of that body to do so after they were made; and
especially in relation to statutory proceedings to clivest the citizen of
his property without his consent by confining the citizen to a partic-
ular mode of seeking his remedy. Union Building Association v. Oily
of Chicago, 439.
INDEX. * 611
REMEDIES. Of restrictions as to a remedy. Continued.
2. If the legislature has prescribed a mode for making a statutory-
proceeding effectual which is unconstitutional, the courts have no au-
thority to reject that mode and adopt a different one. The legislature
must provide the correction. Union Building Association v. City of
Chicago, 439.
Sale of personalty — failure of consideration.
3. Remedy in respect thereto. See ASSUMPSIT, 1.
TO ENFORCE COMPLIANCE WITH JUDGMENT ON AWARD.
4. By attachment for contempt. See ARBITRATIONS AND
AWARDS, 8.
Release of homestead obtained by fraud.
5. Remedy of the wife. See EJECTMENT, 3.
OF THE COLLECTION OF TAXES.
6. Remedy therefor. See TAXES, 4.
TO TRY TITLE TO AN OFFICE.
7. By quo warranto. See QUO WARRANTO, 1.
RENT.
On setting aside an administrator's sale.
1. Of the rule as to taking an account of rents. See CHANCERY
10.
Taking private property for public use.
2. Of rent against the owner pending proceedings. See EMINENT
DOMAIN, 4.
REPEAL OF STATUTES. See STATUTES, 2; TAXES, 1, 2.
REPLEVIN.
When the proper remedy. See ASSUMPSIT, 1.
Whether the action will lie.
At the suit of a landlord, where the tenant has sold the rent corn but not
delivered it. See INJUNCTIONS, 3.
Plea of property in defendant.
Evidence admissible tliereunder. See PLEADING AND EVI-
DENCE, 6.
Alias writ of replevin.
Whsn properly issued. See PROCESS.. 1.
612 * INDEX.
RESCISSION OF CONTRACTS. See CONTRACTS, 13.
RESPONDEAT SUPERIOR. See MASTER AND SERVANT.
RIGHT OF WAY.
Proceedings for condemnation.
1. Of the notice required. A plea to an action of trespass, justifying
the entry on the land by a railroad company under proceedings to
condemn the right of way, in which notice was not given to the owner,
is insufficient to bar the action. A party mnst have notice of such a
proceeding before he can be deprived of his property. It is required
by the statute. Whether the proceedings were instituted under the
act of 1845 or that of 1852, the notice is equally required. Such a no-
tice is indispensable independent of statutory requirement. Peoria
and Rock Island Railway Co. v. Warner, 52.
Act op 1845.
2. How far affected by the act of 1852, or the general railroad laic of
1849. The act of 1845, entitled "Right of Way," was in force notwith-
standing the act of 1852, on the same subject, so far as it is not repug-
nant to the latter act, and it has been so recognized by repeated de-
cisions and by legislative enactment. The general railway law of
1849 did not affect the act of 1845. The 19th section of that act was
intended to reserve the power in the legislature to fix the route and
termini of all roads organized under its provisions, and not to repeal
the law of 1845. Ibid. 52.
3. Right of way. On an appeal in the circuit court in a case for the
assessment of damages on the condemnation of the right of way for a
railroad, the statute has given a trial by jury. Toledo, Peoria and War-
saw Railroad Co. v. Darst, 231.
Entky by company without condemnation.
4. Whether owner estopped from claiming damages. Where a railroad
company went upon land and built their road without procuring the
right of way, and occupied it for twelve years, and then instituted a
proceeding to condemn the right of way, the company have no right
to insist that the owner is estopped to claim damages. He can only be
barred by the statute of limitations, not by mere non-claim for a less
period than the statute has prescribed to bar his claim. Ibid. 231.
5. Presumption as to sale to the company . The mere fact t hat t he
company entered upon the land and constructed their road, and occu-
pied it for about thirteen years, can not be held to raise a presumption
that the owner had sold the right of way to the company. Ibid. 231.
INDEX. 613
RIGHT OF WAY.
Entry by company without condemnation. Continued.
6. Presumption as to license to enter. The mere fact that the com-
pany have been long in possession, in the absence of all proof, will not
raise a presumption that the owner had given a license to enter and
construct their road, and in the absence of such a license the company
must be held liable for damages resulting to other lands of the owner
from the construction of the road. Toledo, Peoria and Warsw Railroad
Co. v. Barst, 231.
RIOT. See CRIMINAL LAW, 3.
SALES.
Judicial sales.
1. Inadequacy of price. Where there is no proof that a sheriff's
sale was not conducted fairly, and the property sold had no definite
market value, a court of equity will not set aside the sale, for inade-
quacy of price. Gibbons v. Bressler, 110.
Sale under power in a mortgage.
2. Of the hours in the day when it may take place Where a mort-
gage stle is announced to be held on the 1st day of March, 1869, be-
tween the hours of nine a. m. and four P. M., the advertisement is suf-
ficient, the hours belonging to the ordinary business portions of the
day. Burr et al. v. Borden et al. 389.
3. Sale upon credit. Where such a sale is advertised as for cash, and
at the sale the mortgagee states that he will not start it at less than
the amount of the mortgage, and a third party bids that amount, there
being no other bidders, and after it is struck off to him the mortgagee
gives him credit on his bid, and there is no proof that this was done
in pursuance of a previous arrangement, such an extension of pay-
ment, whatever it may be, is wholly immaterial and does not vitiate
the sale. Ibid. 389.
4. It seems that, even if there had been an understanding between
them previous to the sale, that, as to the amount going to the mortga-
gee, the intending purchaser might, in case he should purchase, con-
sider it a loan at ten per cent, such an arrangement would not, of itself,
have vitiated the sale; for, even if it occurred, it did not injure the
mortgagor, but was for his benefit. Ibid. 389.
5. Acquiescence in the sale. Where land was sold in 1S60 for sub-
stantially its full value, and in 1867 the property, having, in the mean-
time, risen almost five-fold in value, was sold to an innocent purchaser
614 INDEX.
SALES. Sale under power in a mortgage. Continued.
at this advanced rate, and he erected upon it a very costly building, a
bill filed eight years after the sale by parties who, until that time, had
acquiesced in all these proceedings, and no actual wrong or intentional
fraud is shown, can not be sustained in equity. Ibid. 389.
6. Especially should the doctrine of acquiescence be favorably re-
garded in this State where the value of real estate is so rapidly chang-
ing, and persons are under strong temptation to search for defects in
sales made years ago in payment of debts, and with which the debtors,"
at the time, were perfectly content, and where all parties affected by
the sale have remained for years equally silent and satisfied. Long
experience has clearly shown this rule to be necessary in order to pre-
vent a great mass of vexatious litigation, singularly destitute of merit
because generally instituted by persons who have bought for a trifle
some dormant and forgotten claim. Ibid. 389.
SATISFACTION OF JUDGMENT.
In what manner it may be entered. See JUDGMENTS, 6.
SERVICE OF PROCESS. See PROCESS, 2, 3.
SET OFF.
Judgment against the plaintiff.
On plea of set off. See PRACTICE, 5.
SETTLEMENT.
Of an error therein. See ACCOUNTING, 1.
SPECIAL ASSESSMENTS.
Strictness required in proceedings.
1. The levy of a tax by assessment for improving streets, under an
ordinance, is a statutory proceeding, and the terms of the law author-
izing it must be strictly followed, or the whole is void. Workman et al.
v. City of Chicago, 463.
Who must determine upon assessment.
2. A report of the board of public works of the estimated cost of
a proposed improvement, being a prerequisite to the passage of an or-
dinance, an opinion of the board of the justice of a former void as
sessment, will not sustain a new ordinance. Ibid. 463.
INDEX. 615
SPECIAL ASSESSMENTS.
Who must determine upon assessment. Continued.
3. So, when an ordinance imposes duties upon the board of public
works, and entrusts to the discretion of the board matters left by law
to the common council, such ordinance is void. Workman et al. v. City
of Chicago, 463.
In the city of Chicago.
4. Publication of notice, by whom to be certified. The fact whether
the publication of notice of an application for judgment upon a special
assessment warrant was or was not certified by the printer or publisher
of the newspaper in which it is claimed the publication was made, is
open to proof. Armstrong, Admx. v. City of Chicago, 352.
5. So, where a certificate of that character purported upon its face
to have been given by the publisher of the newspaper, but it was
shown by proof that the person certifying was not the publisher until
after the time of the publication, it was held, the certificate was insuf-
ficient to give the court jurisdiction. Ibid. 352.
6. Of uniting two improvements in the same proceeding. Where an
ordinance required the widening of an alley running north and south
through a block, and the opening of a new alley running east and
west through the same block, and also the condemnation of two tri-
angular pieces of land at the intersection of these alleys for the pur-
pose of improving the ingress and egress to and from the alleys : Held,
that these were separate and distinct improvements, and could not be
united in one proceeding; that in assessing benefits, property owners
would be liable to assessments that they would not if the improvement
.rere made by separate proceedings. Weckler v. City of Chicago, 142.
7. The charter of the city of Chicago has not conferred power to
.i.mbine two or more such improvements in one proceeding, and as it
.r«-uld be liable to abuse, if not impossible of fair execution, it can not
i»e done. Ibid. 142.
8. Assessment of benefits derived from other improvements. The char-
ter of the city requires the commissioners, in making an assessment, to
determine and appraise to the owner the value of the real estate appro-
priated for the improvement and the injury arising to him from the con-
demnation, which shall be awarded to such owner as damages after
deducing therefrom any benefits he may derive from the improve-
ment : Held, that this provision of the charter limits the assessment
of ben, -fits derived from the improvement for which the real estate is
condemned, and impliedly forbids the assessment of benefits derived
from otuer improvements. Ibid. 142.
616 INDEX.
SPECIAL ASSESSMENTS.
In the city of Chicago. Continued.
9. Where a person's property is condemned for the opening of an
alley running east and west through a block, he should not be charged
for benefits he might derive by widening an alley running north and
south through the same block. The benefits must arise from the im
provement for which the real estate is taken. WecUer v. City of Chi-
cago, 142.
Of a new assessment.
10. When the original assessment was void. The city of Chicago
made an original assessment which was declared void. A second
assessment to make up its deficiencies is also void. Union Building
Association v. City of Chicago, 439 ; Workman et al. v. City of Chicago,
463 ; Bowen et al. v. City of Chicago, 268.
11. Defective certificate of publication as to original assessment. Upon
an application for judgment upon a new special assessment for the
deficiency which the city of Chicago failed to collect of a former
assessment, where the only defect in the original proceeding was in
the printer's certificate of notice of application to the council for con-
firmation, the ordinance under which it was had being free from ob-
jection, it was held, the new assessment was not void. Harrison v.
City of Chicago, 459.
Excessive levy.
12. If, after the completion of a work, a levy is made in gross ex-
cess of the ascertained cost, it is fraudulent. Union Building Associa-
tion v. City of Chicago, 439.
Oath of commissioners.
13. Of its extent. If commissioners are sworn to perform a particu-
lar duty, and they proceed to acts not authorized by law nor within
the scope of their oaths, their acts are unlawful and their proceedings
void. Ibid. 439.
SPECIFIC PERFORMANCE. See CHANCERY, 8.
SPIRITUOUS LIQUORS.
Of restraints in respect thereto.
1. How far allowable. Where a city charter authorized the common
council to declare the selling, giving away, or the keeping on hand
for sale any spirituous or intoxicating liquors, etc., in the city, a
nuisance, it does not authorize an ordinance making it an offense for
ixdex> 617
SPIRITUOUS LIQUORS.
Of restraints in respect thereto. Continued.
any person within the city to have in his or her possession any in-
toxicating liquors etc. The ordinance exceeds the power in the char-
ter, as it declares the possession, without the intent to sell, an offense.
Sullivan v. City of Oneida, 242.
2. The charter only contemplates a search in the event that liquors
were in the possession of some person for sale within the city. The
ordinance authorizes the search and seizure if the liquors were kept in
the city, whether the intention was to sell them or ship them for sale
elsewhere. Such an ordinance might interfere with general commerce,
but when confined to the ordinary trafic between the city and its
neighboring towns and cities, it is unjust and illegal, and the ordinance
is ultra vires and void. Ibid. 242.
3. It is no answer to say that the person whose liquor is seized
may prove his innocence — may show the purpose to be lawful. The
law ought not to be guilty of such harshness as to require a man to
prove his innocence where there is not even a suspicion of his gui/t.
Ibid. 242.
4. It has often been decided that a general assembly may prohibit
the retail of intoxicating liquors. But this charter has gone far be-
yond that, as it authorizes the council to license, regulate and tax the
sale of such liquors; to declare the sale, and keeping on hand for sale,
a nuisance; to provide for its summary abatement and suppression;
and it empowers the police magistrate to issue his warrant to search
the premises of persons suspected of selling. It makes the mere pos-
session prima facie evidence of unlawful intent, and without satisfac-
tory explanation, evidence of sale and keeping on hand for sale. Ibid.
242.
5. The ordinance authorizes the police magistrate, on complaint
that anjr person has such liquor for sale, more than one gallon, to issue
his warrant for the search of his dwelling house, and if liquors are
found they shall be seized, and the person arrested, and both brought
before the magistrate, who shall at once proceed to try the person,
and if he should not offer a satisfactory explanation and show that he
had the liquors for a lawful purpose, he shall be fined, and ordered to
the common jail until fine and costs are paid, and the liquors ordered
sold on execution and the proceeds applied to the payment of the fine
and costs. Ibid. 242.
6. The ordinance is objectionable because, while it professes to
prevent the sale of liquors because they are declared to be a nuisance
and should be abated, it requires the liquors to be sold by the officer.
Ibid. 242.
618 INDEX.
SPIRITUOUS LIQUORS.
Of restraints in respect thereto. Continued.
7. Another objection is, that both the charter and ordinance au-
thorize the seizure of all liquors found, without reference to quantity;
whilst the ordinance only authorizes a fine of $100, it authorizes a
seizure of liquors to the value, it may be, of thousands of dollars,
which would be ordered to be sold, as is supposed, to satisf}r the fine,
as it will not be presumed the sale would be ordered merely for the
exercise of unusual or arbitrary power. Again, the ordinance does
not require the surplus to be returned to the owner. Ibid. 242.
8. Whilst a justice of the peace could only render a fine not ex-
ceeding $100, yet, under this charter and ordinance, he is authorized
to adjudicate to an unlimited amount of property, and this seizure is
unreasonable and in violation of the Declaration of Rights. Ibid. 242.
9. Every man has the right to acquire and protect his property ; to
be secure against unreasonable searches and seizures; to a fair trial
before he can be deprived of life, liberty or property; and in all crim-
inal prosecutions the right to be heard, to demand the nature and
cause of the accusation against him, and to meet witnesses face to
face. Under this ordinance a person may be deprived of his property
without notice; condemned without witnesses; his premises subjected
to unreasonable search, and his property seized to an unlimited amount.
Ibid. 242.
10. Spirituous liquors, ale or beer, are property; they are chattels
— are of consumption and of commerce; and the ordinance recognizes
them as property and directs their sale, and permits druggists to keep
them. Their abuse may be restrained and punishment inflicted on
those who sell them to the injury of others. As well as other chat-
ties, they may come under the designation of a nuisance, and to a cer-
tain extent lose their quality of property, but they can not do so per
se. Ibid. 242.
11. The legislature may change the presumptions of guilt; it may,
to a certain extent, declare acts evidence of an unlawful intent which
had before been innocent; it may declare possession^ property, on
account of its dangerous character, unlawful, but such laws must
always have proper safeguards for the security of private rights. Ibid.
242.
12. It is within the power of the legislature to declare the posses-
sion of spirituous liquors, for the purpose of sale, a quasi nuisance,
and to provide a well guarded system of suppression of its use; and
that posession shall be prima facie evidence of unlawful intent. But
in making such changes the utmost care should be observed so as to
preserve the sacredness of the domicil. Ibid. 242.
INDEX. 619
STARE DECISIS. See APPEALS AND WRITS OF ERROR, 4.
STATUTES.
Of the title of special or local laws.
1. Under constitution of 1848. The authorities of a town borrowed
money, and issued orders therefor, without having submitted the
question of making the loan to a vote of the people, as required by
the charter of the town. After the orders were issued, the legislature,
passed "an act to amend the charter of the" town, and by a section
therein declared the orders should be valid and binding, but the title
of the act had no reference to the validating of these orders: Held,
this was a special or local law, and that there were two subjects in the
law, and the constitutional requirement was not observed in express-
ing this matter in the title, and the provision to make the orders valid
was therefore void, and they were not affected by the enactment.
President and Trustees of Lockport v. Gaylord, 276.
Repeal of statutes.
2. Effect thereof on existing rights. When a statute gives a right in
its nature not vested but remaining executory, if it does not become
executed before a repeal of the law giving the right, it falls with the
law and it can not thereafter be enforced. Van Inicagen v. City of
Chicago, 31.
Statutes construed.
3. Act of 1863 authorizing the city of Chicago to tax the premiums of
foreign insurance companies — repeal thereof by act of 1869. Ibid. 31.
See TAXES, 1, 2. •
4. Right of way — proceedings for the condemnation thereof How far
the act of 1845 affected by the act of 1852, or the general railroad law
of 1849. Peoria and Rock Island Railway Co. v. Warner, 52. See
RIGHT OF WAY, 2.
5. Judgment over against the plaintiff, on plea of set-off — under 14th
and 19th sections of the practice act. Eddie v. Eddie, 134. See PRAC-
TICE, 5.
6. Demand by a consignor, of a commission merchant. Construction
of the act of March 4, 1869. Wright v. The People, 382. See COM-
MISSION MERCHANT, 1, 2.
7. Election by municipal corporations for subscription to stock of
railroad, and for the issue of bonds therefor — what officer must call tlie
620 INDEX.
STATUTES. Statutes construed. Continued.
election, under act of February 18, 1857 — and of the effect of the act of
1861 relating to township organization. Force & Co. v. Town of Bata-
ma, 99. See SUBSCRIPTION, 7, 8.
8. Highways — of damages to one whose land a road only adjoins.
Construction of the statute, in Hoag v. Switzer et al. 294. See HIGH-
WAYS, 1, 2.
9. Service of summons by special deputy — mode of appointment under
the statute. Illinois Land and Loan Co. v. McCormick et al. 822. See
PROCESS, 3.
10. Married woman's real estate — mode of conveyance thereof under
act of 1861. Bressler et al. v. Kent, 426. See MARRIED WOMEN,
1, 2, 3.
11. Exemption of personal property from sale on execution, under acts
of 1843 and 1861. Good v. Fogg, 449. See EXEMPTION, 1.
12. Judgme?it against a part, only, of several defendants, in suit on a
contract — construction of act of 1869. Bozhm et al. v. Bozlvm, 140. See
JUDGMENTS, 2.
13. Competency of witnesses, under the statute. Stevens et al. v. Hay,
Admr. 399. See WITNESSES, 2.
14. Witnesses — when the wife may testify in a suit brought by tlie
husband, under act of 1867. Northern Line Packet Co. v. Shearer, 263.
See WITNESSES, 1.
STATUTE OF FRAUDS.
Of a trust for the benefit of the grantor.
Whether within the statute. See TRUSTS AND TRUSTEES, 4.
SUBSCRIPTION.
To STOCK OF RAILROADS BY MUNICIPAL CORPORATIONS.
1. Constitutionality of act. An act authorizing a township to vote
to subscribe for stock to a railroad, and to issue bonds in payment of
the same, is allowable under the constitution of 1848. Marshall et al.
Silliman et al. 218.
2. Notice of election — effect of omitting conditions. Where the re-
quisite number of persons petition the supervisor to call an election
for the purpose of voting whether the township shall subscribe for
INDEX. 621
SUBSCRIPTION.
To stock of railroads by municipal corporations. Continued.
stock and issue bonds to pay therefor, and name a number of condi-
tions of subscription, and the supervisor gives a notice without speci-
fying any conditions, and the vote results in favor of subscription, the
omission to specify the conditions in the notice will not invalidate the
bonds. Marshall et al. v. Silliman et al. 218.
3. Election for two propositions on the same day. Where a notice
was given that a vote would be had on a particular day to vote for and
against subscribing $35,000 to the stock of a railroad, and subsequently
another notice was given for an election on the same day for another
subscription to the same road, for another sum, both elections were
legal. One did not invalidate the other. Ibid. 218.
4. Voting a sum in excess of the law. But the latter sum being vo-
ted in a town meeting, without any authority, it was void, and con-
ferred no power on the town authorities to issue railroad bonds. The
law having limited the subscription to $35,000, the vote of the town
meeting was wholly unauthorized. Ibid. 218.
5. Of the petition for an election. The petition to the supervisor to
call an election was without date, but the notice fixed a time and place
for the election, which was a sufficient compliance with the law. Ibid.
218.
6. Curative legislation — its effect upon a void election for subscripti&n.
See CONSTITUTIONAL LAW. 1, 2.
7. And the issue of bonds therefor — of the election by a toicnsJiip un-
der the special act of February 18, 1857, by whom it must be called. The
act of February 18, 1857, authorizing any city, county, incorporated
town, or any township organized under the township orgauizaiion
laws, situated on or near the route of certain designated railroads, to
become subscribers to the stock of such roads, and to issue their bonds
for the amount of the stock so subscribed, provides that, upon the ap-
plication of any fifty voters of any such city, town, etc., specifying the
amount to be subscribed and the conditions of the subscription, it shall
be the duty of the clerk of such city, town, etc., to call au election in
the same manner that other elections for said city, town, etc., are
-called, for the purpose of determining whether such cit}', county, etc.,
will subscribe to the stock of such road, etc., and if a majority of the
votes shall be for subscription, it authorizes the proper authorities to
•cause such subscription to be made and the bonds therefor to be issued :
Held, that au election, under the provisions of this act, by a township,
to determine whether it would make such a subscription, called by the
town supervisor, was void, and the vote therefor, although in favor of
622 INDEX.
SUBSCRIPTION.
To stock op railroads by municipal corporations. Continued.
subscription, conferred no power on the county authorities to issue
the bonds therefor. The town clerk, and he only, could legally call
such election. Force & Co. v. Town of Batavia, 99.
8. Effect of act of 1861. Nor would the eighth section of article
four of the act of 1861, in relation to township organization, which
authorizes the supervisor to call special town meetings in the absence
of the clerk, have the effect, if such contingency happened, to render
valid such an election so called by the supervisor. The act authoriz-
ing the subscription being a special act, the proceedings under it
must be in conformity with its provisions, and the provisions of the
township organization act have no application to such a case. Ibid. 99.
9. Election called by wrong authority — effect upon the bonds. It has
also been held, in similar cases, where subscriptions were made and
the bonds issued, but the election was called by a wrong authority,
that the bonds, though in the hands of innocent holders, were abso-
lutely void. Ibid. 99.
Falure op consideration.
10. On subscription to stock of railroad company — effect of a sale or
lease of the road. See CONSIDERATION, 2, 3.
SUPERVISOR OF A TOWN.
Power to employ counsel.
1. To defend suits against the town. See OFFICERS, 1 to 4.
Power to call an election.
2. In respect to a subscription to stock of a railroad, and for tlie issue
of bonds therefor— under act of 1857. See SUBSCRIPTION, 7.
SURETY.
Release of surety.
Extension of time to tlie principal. An agreement by the payee of a
promissory note, with the principal maker, to extend the time of pay-
ment without a consideration, does not release the surety from liabil-
ity. Liebbrandt v. Myron Lodge No. One, 81.
TAXES.
Taxing foreign insurance companies in Chicago.
1. Repeal of the act of 1863. The fifth section of the act of Febru-
ary 13, 1863, entitled "An act to reduce the charter of the city of
INDEX. 623
TAXES.
Taxing foreign insurance companies in Chicago. Continued.
Chicago and the several acts amendatory thereof into one act, and to
revise the same," which provides that insurance companies not incor-
porated under the laws of this State, and doing business in said city,
shall pay into the city treasury two per cent of the premiums on all
insurance effected in said city, is repealed by section 30 of the act of
March 10, 1869, entitled "An act to incorporate and to govern fire,
marine and inland navigation insurance companies." VanLnwagen v.
City of Chicago, 31.
2. And the repealing act took from the city the right to sue for such
per cent due on premiums by virtue of the former act, prior to and at
the time of the repealing statute, as the repealing act contained no
clause saving such right, and the same was not a vested right. Ibid. 31.
Leasehold interest — personal property.
3. Warehouse on railroad right of loay. Grain warehouses built by
private individuals upon lands leased by the Illinois Central Railroad
Company, along and on the company's right of way, intended for the
private benefit of the lessees, who have the right to remove the same
before the termination of their leases, are not the property of the
railroad company, but personal property of the lessees, and taxable as
other personal property. Gilkerson et al. v. Brown et al. 486.
Remedy for collection of taxes.
4. The remedy by distress for the collection of taxes is not neces-
sarily exclusive, but a liability for taxes can be enforced by action of
debt. Town of Geneva v. Cole, 397.
Enjoining collection of a tax.
5. Levied to pay interest on municipal bonds issued tinder a void elec-
tion. See INJUNCTIONS, 4.
TENDER.
What constitutes.
1. A party having executed to Myron Lodge No. 1 of the Old Free
Order of Chaldea a certain promissory note, stated that, after the ma-
turity of the note, he offered in open lodge of said Order to the said
lodge itself, and members present, to pay the note and interest; that
they then and there refused to take the monejr, and gave him further
time without his wish, knowing that, at the time he so offered to pay
the note and interest, he had the money to do it with : Held, that an
offer to pay in the manner stated did not amount to a tender. Lieb-
brandt v. Myron Lodge No. One, 81.
624 INDEX.
TRANSCRIPT FROM JUSTICE'S DOCKET.
Authentication thereof.
1. Where the certificate of a justice of the peace to his transcript
was in these words, "That the foregoing transcript and papers con-
tain a full statement of all the proceedings had before me," although
not in the language of the statute, still it is, in substance, sufficient.
Smith et al. v. Frazer et al. 164.
TRESPASS.
Trespass quare clausum fregit.
What character of possession will enable the plaintiff to maintain the
.action. See POSSESSION, 1 to 4.
TROVER.
When the proper remedy. See ASSUMPSIT, 1.
TRUSTS AND TRUSTEES.
When a trust arises as to personalty.
1. If a contract in regard to personalty be complete so far as the
vendor is concerned, if he has been paid all that he was entitled to
and has no claim upon the property arising from the contract, and the
contract only remains unperformed to the extent that the property has
not been delivered to the purchaser, then the vendor would become a
mere trustee of the property for the benefit of the purchaser. Parker
v. Garrison et al. 250.
Mode of establishing a trust.
2. When property is sold by agreement of several interested par-
ties to one of their number, to be held in trust for protection of their
interests, their intention may be shown by parol or memorandum in
writing. Morgan v. Clayton, 35.
Manner of execution.
3. A trust must be executed within its terms. An unauthorized
sale by the trustee will be set aside at the instance of any injured
party. Ibid. 35.
Of a proper purpose of a trust.
4. To defend the grantor on a criminal charge. A party may convey
property to a trustee with power to defend it from litigation, and to
INDEX. 625
TRUSTS AND TRUSTEES.
Op a proper purpose op a trust. Continued.
raise funds to defend the grantor against a criminal charge, or to pro-
cure bail, and it will be, if made in good faith, valid against creditors
and others not having prior liens. But a further trust that it should
also be held in trust for the support of the grantor and his family, is
within the statute of frauds, and is void to that extent; and where the
trustee had incurred liabilities for the defense of the grantor equal to
the fund in his hands, he would be entitled to hold it as against all
but persons having prior liens. Truitt v. Griffin, 26.
Church property.
5. How far the doctrines taught icill operate as a perversion of tlie
trust. See CHURCHES AND CHURCH PROPERTY, 1.
Preventing abuse of a trust.
6. Jurisdiction in chancery for that purpose. See CHANCERY, 7..
VENDOR AND PURCHASER.
Forfeiture of contract.
1. For default in payment. Where a person purchases a lot of
ground and receives a bond containing a clause authorizing a forfeit-
ure on default in payment, and the purchaser sells, and receives the
pay for a part of the lot, to another, and ou default the contract is for-
feited, and the widow of the second purchaser afterwards buys and
pays for the whole lot and improves the same : Held, that she did not
thereby become a trustee for the first purchaser. Anderson v. McCar-
ty et al. 64.
2. Where a title bond contains a clause authorizing the vendor to'
declare the contract forfeited on nonpayment of installments of the
purchase money, and notice is given that a forfeiture will be declared
or payment enforced, and notice afterwards given, that the vendor
had elected to declare a forfeiture of the contract : Held, that the con-
tract was thereby forfeited and the vendor could again sell the property,
and the first purchaser had lost all claim to the property. Ibid. 64.
3. Where a title bond contains such a clause and default is made in
payment, a forfeiture may be declared by any act on the part of the
vendor which evinces an intention to declare a forfeiture, and will
prevent the vendor from enforcing the contract, such as giving notice
that a forfeiture has been declared, offering to sell the land to others,
or even placing it on a sale list, etc. Ibid. 64.
40— 61st III.
626 INDEX.
VENDOR AND PURCHASER. Continued.
Abandonment by purchaser.
4. After notice of forfeiture. Where a person purchases land and
is notified that it is forfeited, and offers to pay no more purchase
money, and fails to pay taxes ou the propertj'- or to do any other act
towards carrying out the purchase, for eight or ten years, it will be
presumed that he had entirely abandoned the purchase, and it would
be inequitable to permit him to come in after that time, when the
property had risen in value, and large and expensive improvements
had been made on it, and hold the property. Anderson v. McCarty
et al. 64.
AS TO SUBSEQUENT VENDEE.
5. Who may question the manner in which he holds. In such a case,
the first purchaser can not be heard to urge that the second purchaser,
being a widow, and administratrix of her husband's estate, had used
the funds of the estate to make the purchase. If that were true, it
could only concern her and her deceased husband's heirs, and it would
be for them to adjust their equities between themselves. Ibid. 64.
VERDICT.
Op the mode op receiving a verdict.
1. Upon the trial of a cause in the circuit court, by consent of coun-
sel, the jury were authorized to return a sealed verdict, and the court
adjourned; but before the judge had left his seat on the bench, the
jury, having agreed, were brought in and delivered an open verdict in
the presence of the judge, clerk and plaintiffs attorney, in favor of
the plaintiff, but in the absence of defendant or his counsel, and were
discharged. Held, that it was error thus to receive the verdict. City
of Chicago v. Rogers, 188.
2. And besides, the court, having adjourned, could not receive any
verdict until it was again convened. Ibid. 188.
Affidavit of jurors.
3. To impeach or sustain their verdict. It is the well settled prac-
tice that, while the court will never receive affidavits of jurors to im-
peach their verdict, affidavits of jurors will be received to support
their findings when attacked. City of Chicago v. Dermody, 431.
VOID AND VOIDABLE.
Municipal bonds.
1. Given on subscription to stock of railroad — election tlieref or called
by wrong authority— bonds void. See SUBSCRIPTION, 9.
Erroneous judgment.
2. In attachment— not void. See ATTACHMENT, 3.
INDEX. 627
WARRANTY.
What constitutes.
1. While no particular form of words is necessary to constitute a
warranty, yet there is a distinction as to the legal effect of expressions
when used in reference to a matter of fact, and when used to express
an opinion. When the representation is positive and relates to a mat-
ter of fact, if relied on by the purchaser arid it induced the purchase,
it constitutes a warranty; but when the representation relates to that
which is a matter of opinion or fancy, as the value of a horse or other
article of property, it does not amount to a warranty unless there are
other declarations which leave no doubt of the intention to warrant.
Reed v. Hastings, 266.
2. The intention with which the representation is made is to be
determined by the character of the representation made, and the object
to be effected by it. Ibid. 266.
WAIVER.
Waiver of objection to jurisdiction. See JURISDICTION, 4.
WILLS.
Bequest in lieu of dower.
1. And herein, of its duration. Where a man provided in his will
that his estate should not be divided until his youngest child arrived
at the age of twenty-one years, and after paying taxes, repairs, etc.,
from the net income, required his executors "to pay one-third thereof
to my wife till the majority of my youngest child, which one-third is
to be for her dower in my estate," the balance of such income to be
divided equally among his children until the youngest became twenty-
one years of age: Held, that this provision was given for and in lieu
of the dower of the widow in the personal estate, and that it ceased at
the death of the widow ; that it was not a bequest that was to run till
the youngest child became twenty-one years of age, if she should die
before that time. Thompson v. Mason et al 208.
Election of the widow.
2. Within what time. Where the will contained this clause, "at the
majority of the youngest child — and by majority I mean the age of
twenty-one years, and not before — my estate is to be divided into
eight equal parts. One undivided eighth I give and bequeath to my
wife, Mary E. Starkweather, to have and to hold to her, her heirs and
assigns forever, provided she then elects to receive the same in lieu
of dower in my estate; provided, however, that my wife is not re-
quired to elect whether she will accept the eighth under this will in
lieu of dower until the time for partition of my estate under this, my
628 INDEX.
WILLS. Election of the widow. Continued.
will," and the widow elected to take under the will, within the time
prescribed thereb\r, and made her will affirming the election, and dis-
posing of the property she had taken under her husband's will : Held,
that she, by electing to take under the will, became invested with the
absolute title to the eighth part bequeathed to her; that the devise
was uot ou the condition that she should' elect at, and not before, the
time for the partition. By the will, she had until that time to make
her election. Thompson v. Mason et al. 208.
WITNESSES.
Competency.
1. When the wife may testify in a suit brought by the husband — under
act o/1867. In an action against a carrier to recover for the loss of
goods, where the suit relates to the wearing apparel and ornaments of
the wife, and a suit is brought by the husband to recover for their
loss — as the wife was, at common law, virtually the owner of such
goods, and could only be divested of such ownership by their sale, or
gift to another by the husband, she is interested in the property in
suit so as to render her a competent witness in such suit, under the
exception to the 5th section of the act relating to the competenc}' of
witnesses, which declares that, where the suit relates to the separate
property of the wife, either may be a witness. Northern Line Packet
Co. v. Shearer, 263.
2. Mortgagor as a witness to prove a defense as against the administra-
tor of an assignee. Where a man and his wife executed a mortgage on
real estate to secure a note, and the mortgagee assigned the note and
mortgage, and the assignee died, and his administrator filed a bill to
foreclose the mortgage, the mortgagors were not competent witnesses
to prove a defense, as they were not embraced in the statute render-
ing parties competent witnesses. Stevens et al. v. Hay, Admr. 399.
Impeachment of a witness.
3. WJiere one of two plaintiffs testifies against the other. In a suit in
the names of two for the use of one of them, in which the one not
having interest testified against his co plaintiff, it is competent to con-
tradict or impeach him by other witnesses. Carey v. Henderson et al.
378.
4. A witness called to impeach the general character of another for
truth and veracity, should be asked if he is acquainted with the gen-
eral character of the witness, in his neighborhood, for truth and ver-
acity, and he must answer in the affirmative before he can testify as
' to his character as to truth ; but although he may be asked as to his
character before he has stated lie knows it, there can arise no harm
when lie answers he does not know how the neighbors regard the
witness in reference to his truthfulness. Foulk v. Eckert, 31b.
INDEX. 629
WITNESSES. Impeachment of a witness. Continued.
5. In such a case, it is improper for the witness to volunteer testi-
mony unfavorable to the character of the witness sought to be im-
peached, but that will not reverse as it was not called for, and the
adverse party did not move to exclude it from the jury; but had it
been asked, and had the court failed to exclude the evidence, it would
have been error. Foulk v. Ec/cert, 318.
' Credibility.
6. Jury to determine. The question whether the witness is entitled
to belief, is for the jury to determine. Valmidschoot v. Adams, 368;
Carey v. Henderson et al. 378.
ERRATUM.
On page 208, in the 2d section of the syllabus, it is erroneously stated
that the widow elected to take under the will, within the time prescribed
by the statute. It should show that she so elected within tlie time prescribed
in the will.
Live Music Archive
Librivox Free Audio
Metropolitan Museum
Cleveland Museum of Art
Internet Arcade
Console Living Room
Books to Borrow
Open Library
TV News
Understanding 9/11